[1] A lawyer, as a member of the legal
profession, is a representative of clients, an officer of the legal system and
a public citizen having special responsibility for the quality of justice.
Whether or not engaging in the practice of law, lawyers should conduct
themselves honorably.

[2] As a representative of clients, a lawyer
performs various functions. As advisor, a lawyer provides a client with an
informed understanding of the client's legal rights and obligations and
explains their practical implications. As advocate, a lawyer asserts the
client's position under the rules of the adversary system. As negotiator, a
lawyer seeks a result advantageous to the client but consistent with
requirements of honest dealings with others. As intermediary between clients, a
lawyer seeks to reconcile their divergent interests as an advisor and, to a
limited extent, as a spokesperson for each client. As an evaluator, a lawyer acts
by examining a client's legal affairs and reporting about them to the client or
to others.

[3] In addition to these representational
functions, a lawyer may serve as a third-party neutral, a nonrepresentational
role helping the parties to resolve a dispute or other matter. Some on these
Rules apply directly to lawyers who are or have served as third-party neutrals.
See, e.g., Rules 1.12 and 2.4. In addition, there are Rules that apply to
lawyers who are not active in the practice of law or to practicing lawyers even
when they are acting in a nonprofessional capacity. For example, a lawyer who
commits fraud in the conduct of a business is subject to discipline for
engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation.
See Rule 8.4.

[4] In all professional functions a lawyer
should be competent, prompt and diligent. A lawyer should maintain
communication with a client concerning the representation. A lawyer should keep
in confidence information relating to representation of a client except so far
as disclosure is required or permitted by the Rules of Professional Conduct or
other law.

[5] A lawyer's conduct should conform to the
requirements of the law, both in professional service to clients and in the
lawyer's business and personal affairs. A lawyer should use the law's
procedures only for legitimate purposes and not to harass or intimidate others.
A lawyer should demonstrate respect for the legal system and for those who
serve it, including judges, other lawyers and public officials. While it is a
lawyer's duty, when necessary, to challenge the rectitude of official action,
it is also a lawyer's duty to uphold legal process.

[6] As a public citizen, a lawyer should seek
improvement of the law, access to the legal system, the administration of
justice and the quality of service rendered by the legal profession. As a
member of a learned profession, a lawyer should cultivate knowledge of the law
beyond its use for clients, employ that knowledge in reform of the law and work
to strengthen legal education. In addition, a lawyer should further the
public's understanding of and confidence in the rule of law and the justice
system because legal institutions in a constitutional democracy depend on
popular participation and support to maintain their authority. A lawyer should
be mindful of deficiencies in the administration of justice and of the fact
that the poor, and sometimes persons who are not poor, cannot afford adequate
legal assistance. Therefore, all lawyers should devote professional time and
resources and use civic influence to ensure equal access to our system of
justice for all those who because of economic or social barriers cannot afford
or secure adequate legal counsel. A lawyer should aid the legal profession in
pursuing these objectives and should help the bar regulate itself in the public
interest.

[7] Many of a lawyer's professional
responsibilities are prescribed in the Rules of Professional Conduct, as well
as substantive and procedural law. However, a lawyer is also guided by personal
conscience and the approbation of professional peers. A lawyer should strive to
attain the highest level of skill, to improve the law and the legal
professional and to exemplify the legal profession's ideals of public service.

[8] A lawyer's responsibilities as a
representative of clients, an officer of the legal system and a public citizen
are usually harmonious. Thus, when an opposing party is well represented, a
lawyer can be an effective advocate on behalf of a client and at the same time
assume that justice is being done. So also, a lawyer can be sure that
preserving client confidences ordinarily serves the public interest because
people are more likely to seek legal advice, and thereby heed their legal
obligations, when they know their communications will be private.

[9] In the nature of law practice, however,
conflicting responsibilities are encountered. Virtually all difficult ethical
problems arise from conflict between a lawyer's responsibilities to clients, to
the legal system and to the lawyer's own interest in remaining an ethical
person while earning a satisfactory living. The Rules of Professional Conduct
often prescribe terms for resolving such conflicts. Within the framework of
these Rules, however, many difficult issues of professional discretion can
arise. Such issues must be resolved through the exercise of sensitive
professional and moral judgment guided by the basic principles underlying the
Rules. These principles include the lawyer's obligation to protect and pursue a
client's legitimate interests, within the bounds of the law, while maintaining
a professional, courteous and civil attitude toward all persons involved in the
legal system.

[10] The legal profession is largely
self-governing. Although other professions also have been granted powers of
self-government, the legal profession is unique in this respect because of the
close relationship between the profession and the processes of government and
law enforcement. This connection is manifested in the fact that ultimate
authority over the legal profession is vested largely in the courts.

[11] To the extent that lawyers meet the
obligations of their professional calling, the occasion for government
regulation is obviated. Self-regulation also helps maintain the legal
profession's independence from government domination. An independent legal
profession is an important force in preserving government under law, for abuse
of legal authority is more readily challenged by a profession whose members are
not dependent on government for the right to practice.

[12] The legal profession's relative autonomy
carries with it special responsibilities of self-government. The profession has
a responsibility to assure that its regulations are conceived in the public
interest and not in furtherance of parochial or self-interested concerns of the
bar. Every lawyer is responsible for observance of the Rules of Professional
Conduct. A lawyer should also aid in securing their observance by other
lawyers. Neglect of these responsibilities compromises the independence of the
profession and the public interest which it serves.

[13] Lawyers play a vital role in the
preservation of society. The fulfillment of this role requires an understanding
by lawyers of their relationship to our legal system. The Rules of Professional
Conduct, when properly applied, serve to define that relationship.

[14] The Rules of Professional Conduct are rules
of reason. They should be interpreted with reference to the purposes of legal
representation and of the law itself. Some of the Rules are imperatives, cast
in the terms “shall” or “shall not.” These define proper conduct for purposes
of professional discipline. Others, generally cast in the term “may,” are
permissive and define areas under the Rules in which the lawyer has discretion
to exercise professional judgment. No disciplinary action should be taken when
the lawyer chooses not to act or acts within the bounds of such discretion.
Other Rules define the nature of relationships between the lawyer and others.
The Rules are thus partly obligatory and disciplinary and partly constitutive
and descriptive in that they define a lawyer's professional role. Many of the
Comments use the term “should.” Comments do not add obligations to the Rules
but provide guidance for practicing in compliance with the Rules.

[15] The Rules presuppose a larger legal context
shaping the lawyer's role. That context includes court rules and statutes
relating to matters of licensure, laws defining specific obligations of lawyers
and substantive and procedural law in general. The Comments are sometimes used
to alert lawyers to their responsibilities under such other law.

[16] Compliance with the Rules, as with all law
in an open society, depends primarily upon understanding and voluntary
compliance, secondarily upon reinforcement by peer and public opinion and
finally, when necessary, upon enforcement through disciplinary proceedings. The
Rules do not, however, exhaust the moral and ethical considerations that should
inform a lawyer, for no worthwhile human activity can be completely defined by
legal rules. The Rules simply provide a framework for the ethical practice of
law.

[17] Furthermore, for purposes of determining the
lawyer's authority and responsibility, principles of substantive law external
to these Rules determine whether a client-lawyer relationship exists. Most of
the duties flowing from the client-lawyer relationship attach only after the
client has requested the lawyer to render legal services and the lawyer has
agreed to do so. But there are some duties, such as that of confidentiality
under Rule 1.6, that attach when the lawyer agrees to consider whether a
client-lawyer relationship shall be established. See Rule 1.18. Whether a
client-lawyer relationship exists for any specific purpose can depend on the
circumstances and may be a question of fact.

[18] Under various legal provisions, including
constitutional, statutory and common law, the responsibilities of government
lawyers may include authority concerning legal matters that ordinarily reposes
in the client in private client-lawyer relationships. For example, a lawyer for
a government agency may have authority on behalf of the government to decide
upon settlement or whether to appeal from an adverse judgment. Such authority
in various respects is generally vested in the attorney general and the state's
attorney in state government, and their federal counterparts, and the same may
be true of other government law officers. Also, lawyers under the supervision
of these officers may be authorized to represent several government agencies in
intragovernmental legal controversies in circumstances where a private lawyer
could not represent multiple private clients. These Rules do not abrogate any
such authority.

[19] Failure to comply with an obligation or
prohibition imposed by a Rule is a basis for invoking the disciplinary process.
The Rules presuppose that disciplinary assessment of a lawyer's conduct will be
made on the basis of the facts and circumstances as they existed at the time of
the conduct in question and in recognition of the fact that a lawyer often has
to act upon uncertain or incomplete evidence of the situation. Moreover, the
Rules presuppose that whether or not discipline should be imposed for a
violation, and the severity of a sanction, depend on all the circumstances,
such as the willfulness and seriousness of the violation, extenuating factors
and whether there have been previous violations.

[20] Violation of a Rule should not itself give
rise to a cause of action against a lawyer, nor should it create any
presumption in such a case that a legal duty has been breached. In addition,
violation of a Rule does not necessarily warrant any other nondisciplinary
remedy, such as disqualification of a lawyer in pending litigation. The Rules
are designed to provide guidance to lawyers and to provide a structure for
regulating conduct through disciplinary agencies. They are not designed to be a
basis for civil liability, but these Rules may be used as non-conclusive evidence
that a lawyer has breached a duty owed to a client. Furthermore, the purpose of
the Rules can be subverted when they are invoked by opposing parties as
procedural weapons. The fact that a rule is a just basis for a lawyer's
self-assessment, or for sanctioning a lawyer under the administration of a
disciplinary authority, does not imply that an antagonist in a collateral
proceeding or transaction has standing to seek enforcement of the Rule.
Nevertheless, since the Rules do establish standards of conduct by lawyers, a
lawyer's violation of a Rule may be evidence of breach of the applicable
standard of conduct.

[21] The Comment accompanying each Rule explains
and illustrates the meaning and purpose of the Rule. The Preamble and this note
on Scope provide general orientation. The Comments are intended as guides to
interpretation, but the text of each Rule is authoritative.

(a) “Belief” or “believes” denotes that the person involved
actually supposed the fact in question to be true. A person's belief may be
inferred from circumstances.

(b) “Confirmed in writing,” when used in reference to the
informed consent of a person, denotes informed consent that is given in writing
by the person or a writing that a lawyer promptly transmits to the person
confirming an oral informed consent. See paragraph (n) for the definition of
“writing.” See paragraph (e) for the definition of “informed consent.” If it is
not feasible to obtain or transmit the writing at the time the person gives
informed consent, then the lawyer must obtain or transmit it within a
reasonable time thereafter.

(c) “Firm” or “law firm” denotes a lawyer or lawyers in a
law partnership, professional corporation, sole proprietorship or other
association authorized to practice law; or lawyers employed in a legal services
organization or the legal department of a corporation or other organization.

(d) “Fraud” or “fraudulent” denotes conduct that is
fraudulent under the substantive or procedural law of the applicable
jurisdiction and has a purpose to deceive.

(e) “Informed consent” denotes the agreement by a person to
a proposed course of conduct after the lawyer has communicated adequate
information and explanation about the material risks of and reasonably
available alternatives to the proposed course of conduct.

(f) “Knowingly,” “known,” or “knows” denotes actual
knowledge of the fact in question. A person's knowledge may be inferred from
circumstances.

(g) “Partner” denotes a member of a partnership, a
shareholder in a law firm organized as a professional corporation, or a member
of an association authorized to practice law.

(h) “Reasonable” or “reasonably” when used in relation to
conduct by a lawyer denotes the conduct of a reasonably prudent and competent
lawyer.

(i) “Reasonable belief” or “reasonably believes” when used
in reference to a lawyer denotes that the lawyer believes the matter in
question and that the circumstances are such that the belief is reasonable.

(j) “Reasonably should know” when used in reference to a
lawyer denotes that a lawyer of reasonable prudence and competence would
ascertain the matter in question.

(k) “Screened” denotes the isolation of a lawyer from any
participation in a matter through the timely imposition of procedures within a
firm that are reasonably adequate under the circumstances to protect
information that the isolated lawyer is obligated to protect under these Rules
or other law.

(l) “Substantial” when used in reference to degree or
extent denotes a material matter of clear and weighty importance.

(m) “Tribunal” denotes a court, an arbitrator, or any other
neutral body or neutral individual making a decision, based on evidence
presented and the law applicable to that evidence, which decision is binding on
the parties involved.

(n) “Writing” or “written” denotes a tangible or electronic
record of a communication or representation, including handwriting,
typewriting, printing, photostatting, photography, audio or videorecording or
e-mail. A “signed” writing includes an electronic sound, symbol or process
attached to or logically associated with a writing and executed or adopted by a
person with the intent to sign the writing.

Comment

Confirmed in Writing

[1] If it is not feasible to obtain or
transmit a written confirmation at the time the client gives informed consent,
then the lawyer must obtain or transmit it within a reasonable time thereafter.
If a lawyer has obtained a client's informed consent, the lawyer may act in
reliance on that consent so long as it is confirmed in writing within a reasonable
time thereafter.

Firm

[2] Whether two or more lawyers constitute a
firm within paragraph (c) can depend on the specific facts. For example, two
practitioners who share office space and occasionally consult or assist each
other ordinarily would not be regarded as constituting a firm. However, if they
present themselves to the public in a way that suggests that they are a firm or
conduct themselves as a firm, they should be regarded as a firm for purposes of
the Rules. The terms of any formal agreement between associated lawyers are
relevant in determining whether they are a firm, as is the fact that they have
mutual access to information concerning the clients they serve. Furthermore, it
is relevant in doubtful cases to consider the underlying purpose of the Rule
that is involved. A group of lawyers could be regarded as a firm for purposes
of the Rule that the same lawyer should not represent opposing parties in
litigation, while it might not be so regarded for purposes of the Rule that
information acquired by one lawyer is attributed to another.

[3] With respect to the law department of an
organization, including the government, there is ordinarily no question that
the members of the department constitute a firm within the meaning of the Rules
of Professional Conduct. There can be uncertainty, however, as to the identity
of the client. For example, it may not be clear whether the law department of a
corporation represents a subsidiary or an affiliated corporation, as well as
the corporation by which the members of the department are directly employed. A
similar question can arise concerning an unincorporated association and its
local affiliates.

[4] Similar questions can also arise with
respect to lawyers in legal aid and legal services organizations. Depending
upon the structure of the organization, the entire organization or different
components of it may constitute a firm or firms for purposes of these Rules.

Fraud

[5] When used in these Rules, the terms “fraud”
or “fraudulent” refer to conduct that is characterized as such under the
substantive or procedural law of the applicable jurisdiction and has a purpose
to deceive. This does not include merely negligent misrepresentation or
negligent failure to apprise another of relevant information. For purposes of
these Rules, it is not necessary that anyone has suffered damages or relied on
the misrepresentation or failure to inform.

Informed Consent

[6] Many of the Rules of Professional Conduct
require the lawyer to obtain the informed consent of a client or other person
(e.g., a former client or, under certain circumstances, a prospective client)
before accepting or continuing representation or pursuing a course of conduct.
See, e.g., Rules 1.2(c), 1.6(a) and 1.7(b). The communication necessary to obtain
such consent will vary according to the Rule involved and the circumstances
giving rise to the need to obtain informed consent. The lawyer must make
reasonable efforts to ensure that the client or other person possesses
information reasonably adequate to make an informed decision. Ordinarily, this
will require communication that includes a disclosure of the facts and
circumstances giving rise to the situation, any explanation reasonably
necessary to inform the client or other person of the material advantages and
disadvantages of the proposed course of conduct and a discussion of the
client's or other person's options and alternatives. In some circumstances it
may be appropriate for a lawyer to advise a client or other person to seek the
advice of other counsel. A lawyer need not inform a client or other person of
facts or implications already known to the client or other person;
nevertheless, a lawyer who does not personally inform the client or other
person assumes the risk that the client or other person is inadequately
informed and the consent is invalid. In determining whether the information and
explanation provided are reasonably adequate, relevant factors include whether
the client or other person is experienced in legal matters generally and in making
decisions of the type involved, and whether the client or other person is
independently represented by other counsel in giving the consent. Normally,
such persons need less information and explanation than others, and generally a
client or other person who is independently represented by other counsel in
giving the consent should be assumed to have given informed consent.

[7] Obtaining informed consent will usually
require an affirmative response by the client or other person. In general, a
lawyer may not assume consent from a client's or other person's silence.
Consent may be inferred, however, from the conduct of a client or other person
who has reasonably adequate information about the matter. A number of Rules
require that a person's consent be confirmed in writing. See Rules 1.7(b) and
1.9(a). For a definition of “writing” and “confirmed in writing,” see
paragraphs (n) and (b). Other Rules require that a client's consent be obtained
in a writing signed by the client. See, e.g., Rules 1.8(a) and (g). For a
definition of “signed,” see paragraph (n).

Screened

[8] This definition applies to situations where
screening of a personally disqualified lawyer is permitted to remove imputation
of a conflict of interest under Rules 1.10, 1.11, 1.12 or 1.18.

[9] The purpose of screening is to assure the
affected parties that confidential information known by the personally
disqualified lawyer remains protected. The personally disqualified lawyer
should acknowledge the obligation not to communicate with any of the other
lawyers in the firm with respect to the matter. Similarly, other lawyers in the
firm who are working on the matter should be informed that the screening is in
place and that they may not communicate with the personally disqualified lawyer
with respect to the matter. Additional screening measures that are appropriate
for the particular matter will depend on the circumstances. To implement,
reinforce and remind all affected lawyers of the presence of the screening, it
may be appropriate for the firm to undertake such procedures as a written
undertaking by the screened lawyer to avoid any communication with other firm
personnel and any contact with any firm files or other materials relating to
the matter, written notice and instructions to all other firm personnel
forbidding any communication with the screened lawyer relating to the matter,
denial of access by the screened lawyer to firm files or other materials
relating to the matter and periodic reminders of the screen to the screened
lawyer and all other firm personnel.

[10] In order to be effective, screening measures
must be implemented as soon as practical after a lawyer or law firm knows or
reasonably should know that there is a need for screening.

[1] In determining whether a lawyer employs
the requisite knowledge and skill in a particular matter, relevant factors
include the relative complexity and specialized nature of the matter, the
lawyer's general experience, the lawyer's training and experience in the field
in question, the preparation and study the lawyer is able to give the matter
and whether it is feasible to refer the matter to, or associate or consult
with, a lawyer of established competence in the field in question. In many
instances, the required proficiency is that of a general practitioner. Expertise
in a particular field of law may be required in some circumstances.

[2] A lawyer need not necessarily have special
training or prior experience to handle legal problems of a type with which the
lawyer is unfamiliar. A newly admitted lawyer can be as competent as a
practitioner with long experience. Some important legal skills, such as the
analysis of precedent, the evaluation of evidence and legal drafting, are
required in all legal problems. Perhaps the most fundamental legal skill
consists of determining what kind of legal problems a situation may involve, a
skill that necessarily transcends any particular specialized knowledge. A
lawyer can provide adequate representation in a wholly novel field through
necessary study. Competent representation can also be provided through the
association of a lawyer of established competence in the field in question.

[3] In an emergency a lawyer may give advice or
assistance in a matter in which the lawyer does not have the skill ordinarily
required where referral to or consultation or association with another lawyer
would be impractical. Even in an emergency, however, assistance should be
limited to that reasonably necessary in the circumstances, for ill-considered
action under emergency conditions can jeopardize the client's interest.

[4] A lawyer may accept representation where
the requisite level of competence can be achieved by reasonable preparation.
This applies as well to a lawyer who is appointed as counsel for an
unrepresented person. See also Rule 6.2.

Thoroughness and Preparation

[5] Competent handling of a particular matter
includes inquiry into and analysis of the factual and legal elements of the
problem, and use of methods and procedures meeting the standards of competent
practitioners. It also includes adequate preparation. The required attention
and preparation are determined in part by what is at stake; major litigation
and complex transactions ordinarily require more extensive treatment than
matters of lesser complexity and consequence. An agreement between the lawyer
and the client regarding the scope of the representation may limit the matters
for which the lawyer is responsible. See Rule 1.2(c).

Maintaining Competence

[6] To maintain the requisite knowledge and
skill, a lawyer should keep abreast of changes in the law and its practice, including
the benefits and risks associated with the technology relevant to the lawyer’s
practice, engage in continuing study and education and comply with all
continuing legal education requirements to which the lawyer is subject.

(a) Subject to paragraphs (c) and (d), a lawyer shall abide
by a client's decisions concerning the objectives of representation and, as
required by Rule 1.4, shall consult with the client as to the means by which
they are to be pursued. A lawyer may take such action on behalf of the client
as is impliedly authorized to carry out the representation. A lawyer shall
abide by a client's decision whether to settle a matter. In a criminal case,
the lawyer shall abide by the client's decision, after consultation with the
lawyer, as to a plea to be entered, whether to waive jury trial and whether the
client will testify.

(b) A lawyer's representation of a client, including
representation by appointment, does not constitute an endorsement of the
client's political, economic, social or moral views or activities.

(c) A lawyer may limit the scope and objectives of the
representation if the limitation is reasonable under the circumstances and the
client gives informed consent.

(d) A lawyer shall not counsel a client to engage, or assist
a client, in conduct that the lawyer knows is criminal or fraudulent, but a
lawyer may discuss the legal consequences of any proposed course of conduct
with a client and may counsel or assist a client to make a good faith effort to
determine the validity, scope, meaning or application of the law.

Comment

Allocation of Authority between Client and Lawyer

[1] Paragraph (a) confers upon the client the
ultimate authority to determine the purposes to be served by legal
representation, within the limits imposed by law and the lawyer's professional
obligations. The decisions specified in paragraph (a), such as whether to
settle a civil matter, must also be made by the client. See Rule 1.4(a)(1) for
the lawyer's duty to communicate with the client about such decisions. With
respect to the means by which the client's objectives are to be pursued, the
lawyer shall consult with the client as required by Rule 1.4(a)(2) and may take
such action as is impliedly authorized to carry out the representation.

[2] On occasion, however, a lawyer and a client
may disagree about the means to be used to accomplish the client's objectives.
Clients normally defer to the special knowledge and skill of their lawyer with
respect to the means to be used to accomplish their objectives, particularly
with respect to technical, legal and tactical matters. Conversely, lawyers
usually defer to the client regarding such questions as the expense to be
incurred and concerns for third persons who might be adversely affected.
Because of the varied nature of the matters about which a lawyer and client might
disagree and because the actions in question may implicate the interests of a
tribunal or other persons, this Rule does not prescribe how such disagreements
are to be resolved. Other law, however, may be applicable and should be
consulted by the lawyer. The lawyer should also consult with the client and
seek a mutually acceptable resolution of the disagreement. If such efforts are
unavailing and the lawyer has a fundamental disagreement with the client, the
lawyer may withdraw from the representation. See Rule 1.16(b)(4). Conversely,
the client may resolve the disagreement by discharging the lawyer. See Rule
1.16(a)(3).

[3] At the outset of a representation, the
client may authorize the lawyer to take specific action on the client's behalf
without further consultation. Absent a material change in circumstances and
subject to Rule 1.4, a lawyer may rely on such an advance authorization. The
client may, however, revoke such authority at any time.

[4] In a case in which the client appears to be
suffering diminished capacity, the lawyer's duty to abide by the client's
decisions is to be guided by reference to Rule 1.14.

Independence from Client's Views or Activities

[5] Legal representation should not be denied
to people who are unable to afford legal services or whose cause is
controversial or the subject of popular disapproval. By the same token,
representing a client does not constitute approval of the client's views or
activities.

Agreements Limiting Scope of Representation

[6] The scope of services to be provided by a
lawyer may be limited by agreement with the client or by the terms under which
the lawyer's services are made available to the client. When a lawyer has been
retained by an insurer to represent an insured, for example, the representation
may be limited to matters related to the insurance coverage. A limited
representation may be appropriate because the client has limited objectives for
the representation. In addition, the terms upon which representation is
undertaken may exclude specific means that might otherwise be used to
accomplish the client's objectives. Such limitations may exclude actions that
the client thinks are too costly or that the lawyer regards as repugnant,
unethical, or imprudent.

[7] Although this Rule affords the lawyer and
client substantial latitude to limit the representation, the limitation must be
reasonable under the circumstances. If, for example, a client's objective is
limited to securing general information about the law the client needs in order
to handle a common and typically uncomplicated legal problem, the lawyer and
client may agree that the lawyer's services will be limited to a brief
telephone consultation. Such a limitation, however, would not be reasonable if
the time allotted was not sufficient to yield advice upon which the client
could rely. Although an agreement for a limited representation does not exempt
a lawyer from the duty to provide competent representation, the limitation is a
factor to be considered when determining the legal knowledge, skill,
thoroughness and preparation reasonably necessary for the representation. See
Rule 1.1.

[8] All agreements concerning a lawyer's
representation of a client must accord with the Rules of Professional Conduct
and other law. See, e.g., Rules 1.1, 1.8 and 5.6.

Criminal, Fraudulent and Prohibited Transactions

[9] Paragraph (d) prohibits a lawyer from
knowingly counseling or assisting a client to commit a crime or fraud. This
prohibition, however, does not preclude the lawyer from giving an honest
opinion about the actual consequences that appear likely to result from a
client's conduct. Nor does the fact that a client uses advice in a course of
action that is criminal or fraudulent of itself make a lawyer a party to the
course of action. There is a critical distinction between presenting an
analysis of legal aspects of questionable conduct and recommending the means by
which a crime or fraud might be committed with impunity.

[10] When the client's course of action has
already begun and is continuing, the lawyer's responsibility is especially
delicate. The lawyer is required to avoid assisting the client, for example, by
drafting or delivering documents that the lawyer knows are fraudulent or by
suggesting how the wrongdoing might be concealed. A lawyer may not continue
assisting a client in conduct that the lawyer originally supposed was legally
proper but then discovers is criminal or fraudulent. The lawyer must,
therefore, withdraw from the representation of the client in the matter. See
Rule 1.16(a). In some cases, withdrawal alone might be insufficient. It may be
necessary for the lawyer to give notice of the fact of withdrawal and to
disaffirm any opinion, document, affirmation or the like. See Rule 4.1.

[11] Where the client is a fiduciary, the lawyer
may be charged with special obligations in dealings with a beneficiary.

[12] Paragraph
(d) applies whether or not the defrauded party is a party to the transaction.
Hence, a lawyer must not participate in a transaction to effectuate criminal or
fraudulent avoidance of tax liability. Paragraph (d) does not preclude
undertaking a criminal defense incident to a general retainer for legal
services to a lawful enterprise. The last clause of paragraph (d) recognizes
that determining the validity or interpretation of a statute or regulation may
require a course of action involving disobedience of the statute or regulation
or of the interpretation placed upon it by governmental authorities.

[13] If a lawyer comes to know or reasonably
should know that a client expects assistance not permitted by the Rules of
Professional Conduct or other law or if the lawyer intends to act contrary to
the client's instructions, the lawyer must consult with the client regarding
the limitations on the lawyer's conduct. See Rule 1.4(a)(5).

A lawyer shall act with reasonable diligence and promptness
in representing a client.

Comment

[1] A lawyer should pursue a matter on behalf
of a client despite opposition, obstruction or personal inconvenience to the
lawyer, and may take whatever lawful and ethical measures are required to
vindicate a client's cause or endeavor. A lawyer must also act with commitment
and dedication to the interests of the client. A lawyer is not bound, however,
to press for every advantage that might be realized for a client. For example,
a lawyer may have authority to exercise professional discretion in determining
the means by which a matter should be pursued. See Rule 1.2. The lawyer's duty
to act with reasonable diligence does not require the use of offensive tactics
or preclude the treating of all persons involved in the legal process with
courtesy and respect.

[2] A lawyer's workload must be controlled so
that each matter can be handled competently.

[3] Perhaps no professional shortcoming is more
widely resented than procrastination. A client's interests often can be
adversely affected by the passage of time or the change of conditions; in
extreme instances, as when a lawyer overlooks a statute of limitations, the
client's legal position may be destroyed. Even when the client's interests are
not affected in substance, however, unreasonable delay can cause a client
needless anxiety and undermine confidence in the lawyer's trustworthiness. A
lawyer's duty to act with reasonable promptness, however, does not preclude the
lawyer from agreeing to a reasonable request for a postponement that will not
prejudice the lawyer's client.

[4] Unless the relationship is terminated as
provided in Rule 1.16, a lawyer should carry through to conclusion all matters undertaken
for a client. If a lawyer's employment is limited to a specific matter, the
relationship terminates when the matter has been resolved. If a lawyer has
served a client over a substantial period in a variety of matters, the client
sometimes may assume that the lawyer will continue to serve on a continuing
basis unless the lawyer gives notice of withdrawal. Doubt about whether a
client-lawyer relationship still exists should be clarified by the lawyer,
preferably in writing, so that the client will not mistakenly suppose the
lawyer is looking after the client's affairs when the lawyer has ceased to do
so. For example, if a lawyer has handled a judicial or administrative
proceeding that produced a result adverse to the client and the lawyer and the client
have not agreed that the lawyer will handle the matter on appeal, the lawyer
must consult with the client about the possibility of appeal before
relinquishing responsibility for the matter. See Rule 1.4(a)(2). Whether the
lawyer is obligated to prosecute the appeal for the client depends on the scope
of the representation the lawyer has agreed to provide to the client. See Rule
1.2.

[5] To
prevent neglect of client matters in the event of a sole practitioner's death
or disability, the duty of diligence may require that each sole practitioner
prepare a plan, in conformity with applicable rules, that designates another
competent lawyer to review client files, notify each client of the lawyer's
death or disability, and determine whether there is a need for immediate
protective action. Cf. Ind. Admission and Discipline Rule 23, Section 27
(providing for court appointment of a lawyer to inventory files and take other
protective action in absence of a plan providing for another lawyer to protect
the interests of the clients of a deceased or disabled lawyer).

(1) promptly inform the client of any decision or
circumstance with respect to which the client's informed consent, as defined in
Rule 1.0(e), is required by these Rules;

(2) reasonably consult with the client about the means by
which the client's objectives are to be accomplished;

(3) keep the client reasonably informed about the status of
the matter;

(4) promptly comply with reasonable requests for
information; and

(5) consult with the client about any relevant limitation on
the lawyer's conduct when the lawyer knows that the client expects assistance
not permitted by the Rules of Professional Conduct or other law or assistance
limited under Rule 1.2(c).

(b) A lawyer shall explain a matter to the extent reasonably
necessary to permit the client to make informed decisions regarding the
representation.

Comment

[1] Reasonable communication between the
lawyer and the client is necessary for the client effectively to participate in
the representation.

Communicating with Client

[2] If these Rules require that a particular
decision about the representation be made by the client, paragraph (a)(1)
requires that the lawyer promptly consult with and secure the client's consent
prior to taking action unless prior discussions with the client have resolved
what action the client wants the lawyer to take. For example, a lawyer who
receives from opposing counsel an offer of settlement in a civil controversy or
a proffered plea bargain in a criminal case must promptly inform the client of
its substance unless the client has previously indicated that the proposal will
be acceptable or unacceptable or has authorized the lawyer to accept or to
reject the offer. See Rule 1.2(a).

[3] Paragraph (a)(2) requires the lawyer to
reasonably consult with the client about the means to be used to accomplish the
client's objectives. In some situations -- depending on both the importance of
the action under consideration and the feasibility of consulting with the
client -- this duty will require consultation prior to taking action. In other
circumstances, such as during a trial when an immediate decision must be made,
the exigency of the situation may require the lawyer to act without prior consultation.
In such cases the lawyer must nonetheless act reasonably to inform the client
of actions the lawyer has taken on the client's behalf. Additionally, paragraph
(a)(3) requires that the lawyer keep the client reasonably informed about the
status of the matter, such as significant developments affecting the timing or
the substance of the representation.

[4] A lawyer's regular communication with
clients will minimize the occasions on which a client will need to request
information concerning the representation. When a client makes a reasonable
request for information, however, paragraph (a)(4) requires prompt compliance
with the request, or if a prompt response is not feasible, that the lawyer, or
a member of the lawyer's staff, acknowledge receipt of the request and advise
the client when a response may be expected. Client telephone calls should be
promptly returned or acknowledged.

Explaining Matters

[5] The client should have sufficient
information to participate intelligently in decisions concerning the objectives
of the representation and the means by which they are to be pursued, to the
extent the client is willing and able to do so. Adequacy of communication
depends in part on the kind of advice or assistance that is involved. For
example, when there is time to explain a proposal made in a negotiation, the
lawyer should review all important provisions with the client before proceeding
to an agreement. In litigation a lawyer should explain the general strategy and
prospects of success and ordinarily should consult the client on tactics that
are likely to result in significant expense or to injure or coerce others. On
the other hand, a lawyer ordinarily will not be expected to describe trial or
negotiation strategy in detail. The guiding principle is that the lawyer should
fulfill reasonable client expectations for information consistent with the duty
to act in the client's best interests and the client's overall requirements as
to the character of representation. In certain circumstances, such as when a
lawyer asks a client to consent to a representation affected by a conflict of
interest, the client must give informed consent, as defined in Rule 1.0(e).

[6] Ordinarily, the information to be provided
is that appropriate for a client who is a comprehending and responsible adult.
However, fully informing the client according to this standard may be
impracticable, for example, where the client is a child or suffers from
diminished capacity. See Rule 1.14. When the client is an organization or group,
it is often impossible or inappropriate to inform every one of its members
about its legal affairs; ordinarily, the lawyer should address communications
to the appropriate officials of the organization. See Rule 1.13. Where many
routine matters are involved, a system of limited or occasional reporting may
be arranged with the client.

Withholding Information

[7] In some circumstances, a lawyer may be
justified in delaying transmission of information when the client would be
likely to react imprudently to an immediate communication. Thus, a lawyer might
withhold a psychiatric diagnosis of a client when the examining psychiatrist
indicates that disclosure would harm the client. A lawyer may not withhold
information to serve the lawyer's own interest or convenience or the interests
or convenience of another person. Rules or court orders governing litigation
may provide that information supplied to a lawyer may not be disclosed to the
client. Rule 3.4(c) directs compliance with such rules or orders.

(a) A lawyer shall not make
an agreement for, charge, or collect an unreasonable fee or an unreasonable
amount for expenses. The factors to be considered in determining the
reasonableness of a fee include the following:

(1) the time and labor
required, the novelty and difficulty of the questions involved, and the skill
requisite to perform the legal service properly;

(2) the likelihood, if
apparent to the client, that the acceptance of the particular employment will
preclude other employment by the lawyer;

(3) the fee customarily
charged in the locality for similar legal services;

(4) the amount involved and
the results obtained;

(5) the time limitations
imposed by the client or by the circumstances;

(6) the nature and length of
the professional relationship with the client;

(7) the experience,
reputation, and ability of the lawyer or lawyers performing the services; and

(8) whether the fee is fixed
or contingent.

(b) The scope of the
representation and the basis or rate of the fee and expenses for which the
client will be responsible shall be communicated to the client, preferably in
writing, before or within a reasonable time after commencing the
representation, except when the lawyer will charge a regularly represented
client on the same basis or rate. Any changes in the basis or rate of the fee
or expenses shall also be communicated to the client.

(c) A fee may be contingent
on the outcome of the matter for which the service is rendered, except in a
matter in which a contingent fee is prohibited by paragraph (d) or other law. A
contingent fee agreement shall be in a writing signed by the client and shall
state the method by which the fee is to be determined, including the percentage
or percentages that shall accrue to the lawyer in the event of settlement,
trial or appeal; litigation and other expenses to be deducted from the
recovery; and whether such expenses are to be deducted before or after the
contingent fee is calculated. The agreement must clearly notify the client of
any expenses for which the client will be liable whether or not the client is
the prevailing party. Upon conclusion of a contingent fee matter, the lawyer
shall provide the client with a written statement stating the outcome of the
matter and, if there is a recovery, showing the remittance to the client and
the method of its determination.

(d) A lawyer shall not enter
into an arrangement for, charge, or collect:

(1) any fee in a domestic
relations matter, the payment or amount of which is contingent upon the
securing of a dissolution or upon the amount of maintenance, support, or
property settlement, or obtaining custody of a child; or

(2) a contingent fee for
representing a defendant in a criminal case.

This provision does not preclude a
contract for a contingent fee for legal representation in a domestic relations
post-judgment collection action, provided the attorney clearly advises his or
her client in writing of the alternative measures available for the collection
of such debt and, in all other particulars, complies with Prof.Cond.R. 1.5(c).

(e) A division of a fee
between lawyers who are not in the same firm may be made only if:

(1) the division is in
proportion to the services performed by each lawyer or each lawyer assumes
joint responsibility for the representation;

(2) the client agrees to the
arrangement, including the share each lawyer will receive, and the agreement is
confirmed in writing; and

(3) the total fee is
reasonable.

Comment

Reasonableness of Fee and Expenses

[1] Paragraph (a) requires that lawyers charge
fees that are reasonable under the circumstances. The factors specified in (1)
through (8) are not exclusive. Nor will each factor be relevant in each
instance. Paragraph (a) also requires that expenses for which the client will
be charged must be reasonable. A lawyer may seek reimbursement for the cost of
services performed in-house, such as copying, or for other expenses incurred
in-house, such as telephone charges, either by charging a reasonable amount to
which the client has agreed in advance or by charging an amount that reasonably
reflects the cost incurred by the lawyer.

Basis or Rate of Fee

[2] When the lawyer has regularly represented a
client, they ordinarily will have evolved an understanding concerning the basis
or rate of the fee and the expenses for which the client will be responsible.
In a new client-lawyer relationship, however, an understanding as to fees and
expenses must be promptly established. Generally, it is desirable to furnish
the client with at least a simple memorandum or copy of the lawyer's customary
fee arrangements that states the general nature of the legal services to be
provided, the basis, rate or total amount of the fee and whether and to what
extent the client will be responsible for any costs, expenses or disbursements
in the course of the representation. A written statement concerning the terms
of the engagement reduces the possibility of misunderstanding.

[3] Contingent fees, like any other fees, are
subject to the reasonableness standard of paragraph (a) of this Rule. In determining
whether a particular contingent fee is reasonable, or whether it is reasonable
to charge any form of contingent fee, a lawyer must consider the factors that
are relevant under the circumstances. Applicable law may impose limitations on
contingent fees, such as a ceiling on the percentage allowable, or may require
a lawyer to offer clients an alternative basis for the fee. Applicable law also
may apply to situations other than a contingent fee, for example, government
regulations regarding fees in certain tax matters.

Terms of Payment

[4] A lawyer may require advance payment of a
fee, but is obliged to return any unearned portion. See Rule 1.16(d). A lawyer
may accept property in payment for services, such as an ownership interest in
an enterprise, providing this does not involve acquisition of a proprietary
interest in the cause of action or subject matter of the litigation contrary to
Rule 1.8(i). However, a fee paid in property instead of money may be subject to
the requirements of Rule 1.8(a) because such fees often have the essential
qualities of a business transaction with the client.

[5] An agreement may not be made whose terms
might induce the lawyer improperly to curtail services for the client or
perform them in a way contrary to the client's interest. For example, a lawyer
should not enter into an agreement whereby services are to be provided only up
to a stated amount when it is foreseeable that more extensive services probably
will be required, unless the situation is adequately explained to the client.
Otherwise, the client might have to bargain for further assistance in the midst
of a proceeding or transaction. However, it is proper to define the extent of
services in light of the client's ability to pay. A lawyer should not exploit a
fee arrangement based primarily on hourly charges by using wasteful procedures.

Prohibited Contingent Fees

[6] Paragraph (d) prohibits a lawyer from
charging a contingent fee in a domestic relations matter when payment is
contingent upon the securing of a dissolution or obtaining custody of a child
or upon the amount of maintenance or support or property settlement to be
obtained.

Division of Fee

[7] A division of fee is a single billing to a
client covering the fee of two or more lawyers who are not in the same firm. A
division of fee facilitates association of more than one lawyer in a matter in
which neither alone could serve the client as well, and most often is used when
the fee is contingent and the division is between a referring lawyer and a trial
specialist. Paragraph (e) permits the lawyers to divide a fee either on the
basis of the proportion of services they render or if each lawyer assumes
responsibility for the representation as a whole. In addition, the client must
agree to the arrangement, including the share that each lawyer is to receive,
and the agreement must be confirmed in writing. Contingent fee agreements must
be in a writing signed by the client and must otherwise comply with paragraph
(c) of this Rule. Joint responsibility for the representation entails financial
and ethical responsibility for the representation as if the lawyers were
associated in a partnership. A lawyer should only refer a matter to a lawyer
whom the referring lawyer reasonably believes is competent to handle the matter.
See Rule 1.1.

[8] Paragraph (e) does not prohibit or regulate
division of fees to be received in the future for work done when lawyers were
previously associated in a law firm.

Disputes over Fees

[9] If a procedure has been established for
resolution of fee disputes, such as an arbitration or mediation procedure
established by the bar, the lawyer must comply with the procedure when it is
mandatory, and, even when it is voluntary, the lawyer should conscientiously
consider submitting to it. Law may prescribe a procedure for determining a
lawyer's fee, for example, in representation of an executor or administrator, a
class or a person entitled to a reasonable fee as part of the measure of
damages. The lawyer entitled to such a fee and a lawyer representing another
party concerned with the fee should comply with the prescribed procedure.

(a) A lawyer shall not reveal information relating to
representation of a client unless the client gives informed consent, the
disclosure is impliedly authorized in order to carry out the representation or
the disclosure is permitted by paragraph (b).

(b) A lawyer may reveal information relating to the
representation of a client to the extent the lawyer reasonably believes necessary:

(1) to prevent reasonably
certain death or substantial bodily harm;

(2) to prevent the client
from committing a crime or from committing fraud that is reasonably certain to
result in substantial injury to the financial interests or property of another
and in furtherance of which the client has used or is using the lawyer's
services;

(3) to prevent, mitigate or
rectify substantial injury to the financial interests or property of another
that is reasonably certain to result or has resulted from the client's
commission of a crime or fraud in furtherance of which the client has used the
lawyer's services;

(4) to secure legal advice
about the lawyer's compliance with these Rules;

(5) to establish a claim or
defense on behalf of the lawyer in a controversy between the lawyer and the
client, to establish a defense to a criminal charge or civil claim against the
lawyer based upon conduct in which the client was involved, or to respond to
allegations in any proceeding concerning the lawyer's representation of the
client; or

(6) to comply with other law
or a court order.

(c) In the event of a lawyer's physical or mental
disability or the appointment of a guardian or conservator of an attorney's
client files, disclosure of a client's names and files is authorized to the
extent necessary to carry out the duties of the person managing the lawyer's
files.

Comment

[1] This Rule governs the disclosure by a
lawyer of information relating to the representation of a client during the
lawyer's representation of the client. See Rule 1.18 for the lawyer's duties
with respect to information provided to the lawyer by a prospective client,
Rule 1.9(c)(2) for the lawyer's duty not to reveal information relating to the
lawyer's prior representation of a former client and Rules 1.8(b) and 1.9(c)(1)
for the lawyer's duties with respect to the use of such information to the
disadvantage of clients and former clients.

[2] A fundamental principle in the
client-lawyer relationship is that, in the absence of the client's informed
consent, the lawyer must not reveal information relating to the representation.
See Rule 1.0(e) for the definition of informed consent. This contributes to the
trust that is the hallmark of the client-lawyer relationship. The client is
thereby encouraged to seek legal assistance and to communicate fully and
frankly with the lawyer even as to embarrassing or legally damaging subject
matter. The lawyer needs this information to represent the client effectively
and, if necessary, to advise the client to refrain from wrongful conduct.
Almost without exception, clients come to lawyers in order to determine their
rights and what is, in the complex of laws and regulations, deemed to be legal
and correct. Based upon experience, lawyers know that almost all clients follow
the advice given, and the law is upheld.

[3] The principle of client-lawyer
confidentiality is given effect by related bodies of law: the attorney-client
privilege, the work product doctrine and the rule of confidentiality
established in professional ethics. The attorney-client privilege and
work-product doctrine apply in judicial and other proceedings in which a lawyer
may be called as a witness or otherwise required to produce evidence concerning
a client. The rule of client-lawyer confidentiality applies in situations other
than those where evidence is sought from the lawyer through compulsion of law.
The confidentiality rule, for example, applies not only to matters communicated
in confidence by the client but also to all information relating to the representation,
whatever its source. A lawyer may not disclose such information except as
authorized or required by the Rules of Professional Conduct or other law. See
also Scope.

[4] Paragraph (a) prohibits a lawyer from
revealing information relating to the representation of a client. This
prohibition also applies to disclosures by a lawyer that do not in themselves
reveal protected information but could reasonably lead to the discovery of such
information by a third person. A lawyer's use of a hypothetical to discuss
issues relating to the representation is permissible so long as there is no
reasonable likelihood that the listener will be able to ascertain the identity
of the client or the situation involved.

Authorized Disclosure

[5] Except to the extent that the client's
instructions or special circumstances limit that authority, a lawyer is
impliedly authorized to make disclosures about a client when appropriate in
carrying out the representation. In some situations, for example, a lawyer may
be impliedly authorized to admit a fact that cannot properly be disputed or to
make a disclosure that facilitates a satisfactory conclusion to a matter.
Lawyers in a firm may, in the course of the firm's practice, disclose to each
other information relating to a client of the firm, unless the client has
instructed that particular information be confined to specified lawyers.

Disclosure Adverse to Client

[6] Although the public interest is usually
best served by a strict rule requiring lawyers to preserve the confidentiality
of information relating to the representation of their clients, the
confidentiality rule is subject to limited exceptions. Paragraph (b)(1)
recognizes the overriding value of life and physical integrity and permits
disclosure reasonably necessary to prevent reasonably certain death or
substantial bodily harm. Such harm is reasonably certain to occur if it will be
suffered imminently or if there is a present and substantial threat that a
person will suffer such harm at a later date if the lawyer fails to take action
necessary to eliminate the threat. Thus, a lawyer who knows that a client has
accidentally discharged toxic waste into a town's water supply may reveal this
information to the authorities if there is a present and substantial risk that
a person who drinks the water will contract a life-threatening or debilitating
disease and the lawyer's disclosure is necessary to eliminate the threat or
reduce the number of victims.

[7] Paragraph (b)(2) is a limited exception to
the rule of confidentiality that permits the lawyer to reveal information to
the extent necessary to enable affected persons or appropriate authorities to
prevent the client from committing a crime or from committing fraud, as defined
in Rule 1.0(d), that is reasonably certain to result in substantial injury to
the financial or property interests of another and in furtherance of which the
client has used or is using the lawyer's services. Such a serious abuse of the
client-lawyer relationship by the client forfeits the protection of this Rule.
The client can, of course, prevent such disclosure by refraining from the
wrongful conduct. Although paragraph (b)(2) does not require the lawyer to
reveal the client's misconduct, the lawyer may not counsel or assist the client
in conduct the lawyer knows is criminal or fraudulent. See Rule 1.2(d). See
also Rule 1.16 with respect to the lawyer's obligation or right to withdraw
from the representation of the client in such circumstances, and Rule 1.13(c),
which permits the lawyer, where the client is an organization, to reveal
information relating to the representation in limited circumstances.

[8] Paragraph (b)(3) addresses the situation in
which the lawyer does not learn of the client's crime or fraud until after it
has been consummated. Although the client no longer has the option of
preventing disclosure by refraining from the wrongful conduct, there will be
situations in which the loss suffered by the affected person can be prevented,
rectified or mitigated. In such situations, the lawyer may disclose information
relating to the representation to the extent necessary to enable the affected
persons to prevent or mitigate reasonably certain losses or to attempt to
recoup their losses. Paragraph (b)(3) does not apply when a person who has
committed a crime or fraud thereafter employs a lawyer for representation
concerning that offense.

[9] A lawyer's confidentiality obligations do
not preclude a lawyer from securing confidential legal advice about the
lawyer's personal responsibility to comply with these Rules. In most
situations, disclosing information to secure such advice will be impliedly
authorized for the lawyer to carry out the representation. Even when the
disclosure is not impliedly authorized, paragraph (b)(4) permits such
disclosure because of the importance of a lawyer's compliance with the Rules of
Professional Conduct.

[10] Where a legal claim or disciplinary charge
alleges complicity of the lawyer in a client's conduct or other misconduct of
the lawyer involving representation of the client, the lawyer may respond to
the extent the lawyer reasonably believes necessary to establish a defense. The
same is true with respect to a claim involving the conduct or representation of
a former client. Such a charge can arise in a civil, criminal, disciplinary or
other proceeding and can be based on a wrong allegedly committed by the lawyer
against the client or on a wrong alleged by a third person, for example, a
person claiming to have been defrauded by the lawyer and client acting
together. The lawyer's right to respond arises when an assertion of such
complicity has been made. Paragraph (b)(5) does not require the lawyer to await
the commencement of an action or proceeding that charges such complicity, so
that the defense may be established by responding directly to a third party who
has made such an assertion. The right to defend also applies, of course, where
a proceeding has been commenced.

[11] A lawyer entitled to a fee is permitted by
paragraph (b)(5) to prove the services rendered in an action to collect it.
This aspect of the rule expresses the principle that the beneficiary of a
fiduciary relationship may not exploit it to the detriment of the fiduciary.

[12] Other law may require that a lawyer disclose
information about a client. Whether such a law supersedes Rule 1.6 is a
question of law beyond the scope of these Rules. When disclosure of information
relating to the representation appears to be required by other law, the lawyer
must discuss the matter with the client to the extent required by Rule 1.4. If,
however, the other law supersedes this Rule and requires disclosure, paragraph
(b)(6) permits the lawyer to make such disclosures as are necessary to comply
with the law.

[13] A lawyer may be ordered to reveal
information relating to the representation of a client by a court or by another
tribunal or governmental entity claiming authority pursuant to other law to
compel the disclosure. Absent informed consent of the client to do otherwise,
the lawyer should assert on behalf of the client all nonfrivolous claims that
the order is not authorized by other law or that the information sought is
protected against disclosure by the attorney-client privilege or other
applicable law. In the event of an adverse ruling, the lawyer must consult with
the client about the possibility of appeal to the extent required by Rule 1.4.
Unless review is sought, however, paragraph (b)(6) permits the lawyer to comply
with the court's order.

[14] Paragraph (b) permits disclosure only to the
extent the lawyer reasonably believes the disclosure is necessary to accomplish
one of the purposes specified. Where practicable, the lawyer should first seek
to persuade the client to take suitable action to obviate the need for
disclosure. In any case, a disclosure adverse to the client's interest should
be no greater than the lawyer reasonably believes necessary to accomplish the
purpose. If the disclosure will be made in connection with a judicial
proceeding, the disclosure should be made in a manner that limits access to the
information to the tribunal or other persons having a need to know it and
appropriate protective orders or other arrangements should be sought by the
lawyer to the fullest extent practicable.

[15] Paragraph (b) permits but does not require
the disclosure of information relating to a client's representation to
accomplish the purposes specified in paragraphs (b)(1) through (b)(6). In
exercising the discretion conferred by this Rule, the lawyer may consider such
factors as the nature of the lawyer's relationship with the client and with
those who might be injured by the client, the lawyer's own involvement in the
transaction and factors that may extenuate the conduct in question. A lawyer's
decision not to disclose as permitted by paragraph (b) does not violate this
Rule. Disclosure may be required, however, by other Rules. Some Rules require
disclosure only if such disclosure would be permitted by paragraph (b). See
Rules 1.2(d), 4.1(b), 8.1 and 8.3. Rule 3.3, on the other hand, requires
disclosure in some circumstances regardless of whether such disclosure is
permitted by this Rule. See Rule 3.3(c).

Acting Competently to Preserve Confidentiality

[16] A lawyer must act competently to safeguard
information relating to the representation of a client against inadvertent or
unauthorized disclosure by the lawyer or other persons who are participating in
the representation of the client or who are subject to the lawyer's
supervision. See Rules 1.1, 5.1 and 5.3.

[17] When transmitting a communication that includes
information relating to the representation of a client, the lawyer must take
reasonable precautions to prevent the information from coming into the hands of
unintended recipients. This duty, however, does not require that the lawyer use
special security measures if the method of communication affords a reasonable
expectation of privacy. Special circumstances, however, may warrant special
precautions. Factors to be considered in determining the reasonableness of the
lawyer's expectation of confidentiality include the sensitivity of the
information and the extent to which the privacy of the communication is
protected by law or by a confidentiality agreement. A client may require the
lawyer to implement special security measures not required by this Rule or may
give informed consent to the use of a means of communication that would
otherwise be prohibited by this Rule.

Former Client

[18] The duty of confidentiality continues after
the client-lawyer relationship has terminated. See Rule 1.9(c)(2). See Rule
1.9(c)(1) for the prohibition against using such information to the
disadvantage of the former client.

Disability of an Attorney

[19] Paragraph (c) is intended to operate in
conjunction with Ind. Admission and Discipline Rule 23, Section 27, as well as
such other arrangements as may be implemented by agreement to deal with the
physical or mental disability of a lawyer.

(a) Except as provided in paragraph (b), a lawyer shall not
represent a client if the representation involves a concurrent conflict of
interest. A concurrent conflict of interest exists if:

(1) the representation of one client will be directly
adverse to another client; or

(2) there is a significant risk that the representation of
one or more clients will be materially limited by the lawyer's responsibilities
to another client, a former client or a third person or by a personal interest
of the lawyer.

(b) Notwithstanding the existence of a concurrent conflict
of interest under paragraph (a), a lawyer may represent a client if:

(1) the lawyer reasonably believes that the lawyer will be
able to provide competent and diligent representation to each affected client;

(2) the representation is not prohibited by law;

(3) the representation does not involve the assertion of a
claim by one client against another client represented by the lawyer in the
same litigation or other proceeding before a tribunal; and

[1] Loyalty and independent judgment are
essential elements in the lawyer's relationship to a client. Concurrent
conflicts of interest can arise from the lawyer's responsibilities to another
client, a former client or a third person or from the lawyer's own interests.
For specific Rules regarding certain concurrent conflicts of interest, see Rule
1.8. For former client conflicts of interest, see Rule 1.9. For conflicts of
interest involving prospective clients, see Rule 1.18. For definitions of
“informed consent” and “confirmed in writing,” see Rule 1.0(e) and (b).

[2] Resolution of a conflict of interest
problem under this Rule requires the lawyer to: 1) clearly identify the client
or clients; 2) determine whether a conflict of interest exists; 3) decide
whether the representation may be undertaken despite the existence of a
conflict, i.e., whether the conflict is consentable; and 4) if so, consult with
the clients affected under paragraph (a) and obtain their informed consent,
confirmed in writing. The clients affected under paragraph (a) include both of
the clients referred to in paragraph (a)(1) and the one or more clients whose
representation might be materially limited under paragraph (a)(2).

[3] A conflict of interest may exist before representation
is undertaken, in which event the representation must be declined, unless the
lawyer obtains the informed consent of each client under the conditions of
paragraph (b). To determine whether a conflict of interest exists, a lawyer
should adopt reasonable procedures, appropriate for the size and type of firm
and practice, to determine in both litigation and non-litigation matters the
persons and issues involved. See also Comment to Rule 5.1. Ignorance caused by
a failure to institute such procedures will not excuse a lawyer's violation of
this Rule. As to whether a client-lawyer relationship exists or, having once
been established, is continuing, see Comment to Rule 1.3 and Scope.

[4] If a conflict arises after representation
has been undertaken, the lawyer ordinarily must withdraw from the
representation, unless the lawyer has obtained the informed consent of the
client under the conditions of paragraph (b). See Rule 1.16. Where more than
one client is involved, whether the lawyer may continue to represent any of the
clients is determined both by the lawyer's ability to comply with duties owed
to the former client and by the lawyer's ability to represent adequately the
remaining client or clients, given the lawyer's duties to the former client.
See Rule 1.9. See also Comments [5] and [29].

[5] Unforeseeable developments, such as changes
in corporate and other organizational affiliations or the addition or
realignment of parties in litigation, might create conflicts in the midst of a
representation, as when a company sued by the lawyer on behalf of one client is
bought by or merged with another client represented by the lawyer in an
unrelated matter. Depending on the circumstances, the lawyer may have the
option to withdraw from one of the representations in order to avoid the
conflict. The lawyer must seek court approval where necessary and take steps to
minimize harm to the clients. See Rule 1.16. The lawyer must continue to
protect the confidences of the client from whose representation the lawyer has
withdrawn. See Rule 1.9(c).

Identifying Conflicts of Interest: Directly Adverse

[6] Loyalty to a current client prohibits
undertaking representation directly adverse to that client without that
client's informed consent. Thus, absent consent, a lawyer may not act as an
advocate in one matter against a person the lawyer represents in some other
matter, even when the matters are wholly unrelated. The client as to whom the
representation is directly adverse is likely to feel betrayed, and the
resulting damage to the client-lawyer relationship is likely to impair the
lawyer's ability to represent the client effectively. In addition, the client
on whose behalf the adverse representation is undertaken reasonably may fear
that the lawyer will pursue that client's case less effectively out of
deference to the other client, i.e., that the representation may be materially
limited by the lawyer's interest in retaining the current client. Similarly, a directly
adverse conflict may arise when a lawyer is required to cross-examine a client
who appears as a witness in a lawsuit involving another client, as when the
testimony will be damaging to the client who is represented in the lawsuit. On
the other hand, simultaneous representation in unrelated matters of clients
whose interests are only economically adverse, such as representation of
competing economic enterprises in unrelated litigation, does not ordinarily
constitute a conflict of interest and thus may not require consent of the
respective clients.

[7] Directly adverse conflicts can also arise
in transactional matters. For example, if a lawyer is asked to represent the
seller of a business in negotiations with a buyer represented by the lawyer,
not in the same transaction but in another, unrelated matter, the lawyer could
not undertake the representation without the informed consent of each client.

Identifying Conflicts of Interest: Material Limitation

[8] Even where there is no direct adverseness,
a conflict of interest exists if there is a significant risk that a lawyer's
ability to consider, recommend or carry out an appropriate course of action for
the client will be materially limited as a result of the lawyer's other
responsibilities or interests. For example, a lawyer asked to represent several
individuals seeking to form a joint venture is likely to be materially limited
in the lawyer's ability to recommend or advocate all possible positions that
each might take because of the lawyer's duty of loyalty to the others. The
conflict in effect forecloses alternatives that would otherwise be available to
the client. The mere possibility of subsequent harm does not itself require
disclosure and consent. The critical questions are the likelihood that a difference
in interests will eventuate and, if it does, whether it will materially
interfere with the lawyer's independent professional judgment in considering
alternatives or foreclose courses of action that reasonably should be pursued
on behalf of the client.

Lawyer's Responsibilities to Former Clients and Other Third
Persons

[9] In addition to conflicts with other current
clients, a lawyer's duties of loyalty and independence may be materially
limited by responsibilities to former clients under Rule 1.9 or by the lawyer's
responsibilities to other persons, such as fiduciary duties arising from a
lawyer's service as a trustee, executor or corporate director.

Personal Interest Conflicts

[10] The lawyer's own interests should not be
permitted to have an adverse effect on representation of a client. For example,
if the probity of a lawyer's own conduct in a transaction is in serious
question, it may be difficult or impossible for the lawyer to give a client
detached advice. Similarly, when a lawyer has discussions concerning possible
employment with an opponent of the lawyer's client, or with a law firm
representing the opponent, such discussions could materially limit the lawyer's
representation of the client. In addition, a lawyer may not allow related business
interests to affect representation, for example, by referring clients to an
enterprise in which the lawyer has an undisclosed financial interest. See Rule
1.8 for specific Rules pertaining to a number of personal interest conflicts,
including business transactions with clients. See also Rule 1.10 (personal
interest conflicts under Rule 1.7 ordinarily are not imputed to other lawyers
in a law firm).

[11] When lawyers representing different clients
in the same matter or in substantially related matters are closely related by
blood or marriage, there may be a significant risk that client confidences will
be revealed and that the lawyer's family relationship will interfere with both
loyalty and independent professional judgment. As a result, each client is entitled
to know of the existence and implications of the relationship between the
lawyers before the lawyer agrees to undertake the representation. Thus, a
lawyer related to another lawyer, e.g., as parent, child, sibling or spouse,
ordinarily may not represent a client in a matter where that lawyer is
representing another party, unless each client gives informed consent. The
disqualification arising from a close family relationship is personal and
ordinarily is not imputed to members of firms with whom the lawyers are
associated. See Rule 1.10.

[12] A lawyer is prohibited from engaging in
sexual relationships with a client unless the sexual relationship predates the
formation of the client-lawyer relationship. See Rule 1.8(j).

Interest of Person Paying for a Lawyer's Service

[13] A lawyer may be paid from a source other
than the client, including a co-client, if the client is informed of that fact
and consents and the arrangement does not compromise the lawyer's duty of
loyalty or independent judgment to the client. See Rule 1.8(f). If acceptance
of the payment from any other source presents a significant risk that the
lawyer's representation of the client will be materially limited by the
lawyer's own interest in accommodating the person paying the lawyer's fee or by
the lawyer's responsibilities to a payer who is also a co-client, then the
lawyer must comply with the requirements of paragraph (b) before accepting the
representation, including determining whether the conflict is consentable and,
if so, that the client has adequate information about the material risks of the
representation.

Prohibited Representations

[14] Ordinarily, clients may consent to
representation notwithstanding a conflict. However, as indicated in paragraph
(b), some conflicts are nonconsentable, meaning that the lawyer involved cannot
properly ask for such agreement or provide representation on the basis of the
client's consent. When the lawyer is representing more than one client, the
question of consentability must be resolved as to each client.

[15] Consentability is typically determined by
considering whether the interests of the clients will be adequately protected
if the clients are permitted to give their informed consent to representation
burdened by a conflict of interest. Thus, under paragraph (b)(1),
representation is prohibited if in the circumstances the lawyer cannot
reasonably conclude that the lawyer will be able to provide competent and
diligent representation. See Rule 1.1 (competence) and Rule 1.3 (diligence).

[16] Paragraph (b)(2) describes conflicts that
are nonconsentable because the representation is prohibited by applicable law.
For example, in some states substantive law provides that the same lawyer may
not represent more than one defendant in a capital case, even with the consent
of the clients, and under federal criminal statutes certain representations by
a former government lawyer are prohibited, despite the informed consent of the
former client. In addition, decisional law in some states limits the ability of
a governmental client, such as a municipality, to consent to a conflict of
interest.

[17] Paragraph (b)(3) describes conflicts that
are nonconsentable because of the institutional interest in vigorous
development of each client's position when the clients are aligned directly
against each other in the same litigation or other proceeding before a
tribunal. Whether clients are aligned directly against each other within the
meaning of this paragraph requires examination of the context of the proceeding.
Although this paragraph does not preclude a lawyer's multiple representation of
adverse parties to a mediation (because mediation is not a proceeding before a
“tribunal” under Rule 1.0(m)), such representation may be precluded by
paragraph (b)(1).

Informed Consent

[18] Informed consent requires that each affected
client be aware of the relevant circumstances and of the material and
reasonably foreseeable ways that the conflict could have adverse effects on the
interests of that client. See Rule 1.0(e) (informed consent). The information
required depends on the nature of the conflict and the nature of the risks
involved. When representation of multiple clients in a single matter is
undertaken, the information must include the implications of the common
representation, including possible effects on loyalty, confidentiality and the
attorney-client privilege and the advantages and risks involved. See Comments [30]
and [31] (effect of common representation on confidentiality).

[19] Under some circumstances it may be impossible
to make the disclosure necessary to obtain consent. For example, when the
lawyer represents different clients in related matters and one of the clients
refuses to consent to the disclosure necessary to permit the other client to
make an informed decision, the lawyer cannot properly ask the latter to
consent. In some cases the alternative to common representation can be that
each party may have to obtain separate representation with the possibility of
incurring additional costs. These costs, along with the benefits of securing
separate representation, are factors that may be considered by the affected
client in determining whether common representation is in the client's
interests.

Consent Confirmed in Writing

[20] Paragraph (b) requires the lawyer to obtain
the informed consent of the client, confirmed in writing. Such a writing may
consist of a document executed by the client. In the alternative, the lawyer
shall promptly transmit a writing to the client confirming the client's oral
consent. See Rule 1.0(b). See also Rule 1.0(n) (writing includes electronic
transmission). If it is not feasible to obtain or transmit the writing at the
time the client gives informed consent, then the lawyer must obtain or transmit
it within a reasonable time thereafter. See Rule 1.0(b). The requirement of a
writing does not supplant the need in most cases for the lawyer to talk with
the client, to explain the risks and advantages, if any, of representation
burdened with a conflict of interest, as well as reasonably available alternatives,
and to afford the client a reasonable opportunity to consider the risks and
alternatives and to raise questions and concerns. Rather, the writing is
required in order to impress upon clients the seriousness of the decision the
client is being asked to make and to avoid disputes or ambiguities that might
later occur in the absence of a writing.

Revoking Consent

[21] A client who has given consent to a conflict
may revoke the consent and, like any other client, may terminate the lawyer's
representation at any time. Whether revoking consent to the client's own
representation precludes the lawyer from continuing to represent other clients
depends on the circumstances, including the nature of the conflict, whether the
client revoked consent because of a material change in circumstances, the
reasonable expectations of the other client and whether material detriment to
the other clients or the lawyer would result.

Consent to Future Conflict

[22] Whether a lawyer may properly request a
client to waive conflicts that might arise in the future is subject to the test
of paragraph (b). The effectiveness of such waivers is generally determined by
the extent to which the client reasonably understands the material risks that
the waiver entails. The more comprehensive the explanation of the types of
future representations that might arise and the actual and reasonably
foreseeable adverse consequences of those representations, the greater the
likelihood that the client will have the requisite understanding. Thus, if the
client agrees to consent to a particular type of conflict with which the client
is already familiar, then the consent ordinarily will be effective with regard
to that type of conflict. If the consent is general and open-ended, then the
consent ordinarily will be ineffective, because it is not reasonably likely
that the client will have understood the material risks involved. On the other
hand, if the client is an experienced user of the legal services involved and
is reasonably informed regarding the risk that a conflict may arise, such
consent is more likely to be effective, particularly if, e.g., the client is
independently represented by other counsel in giving consent and the consent is
limited to future conflicts unrelated to the subject of the representation. In
any case, advance consent cannot be effective if the circumstances that
materialize in the future are such as would make the conflict nonconsentable
under paragraph (b).

Conflicts in Litigation

[23] Paragraph (b)(3) prohibits representation of
opposing parties in the same litigation, regardless of the clients' consent. On
the other hand, simultaneous representation of parties whose interests in
litigation may conflict, such as coplaintiffs or codefendants, is governed by
paragraph (a)(2). A conflict may exist by reason of substantial discrepancy in
the parties' testimony, incompatibility in positions in relation to an opposing
party or the fact that there are substantially different possibilities of
settlement of the claims or liabilities in question. Such conflicts can arise
in criminal cases as well as civil. The potential for conflict of interest in
representing multiple defendants in a criminal case is so grave that ordinarily
a lawyer should decline to represent more than one codefendant. On the other
hand, common representation of persons having similar interests in civil
litigation is proper if the requirements of paragraph (b) are met.

[24] Ordinarily a lawyer may take inconsistent
legal positions in different tribunals at different times on behalf of
different clients. The mere fact that advocating a legal position on behalf of
one client might create precedent adverse to the interests of a client
represented by the lawyer in an unrelated matter does not create a conflict of
interest. A conflict of interest exists, however, if there is a significant
risk that a lawyer's action on behalf of one client will materially limit the
lawyer's effectiveness in representing another client in a different case; for
example, when a decision favoring one client will create a precedent likely to
seriously weaken the position taken on behalf of the other client. Factors
relevant in determining whether the clients need to be advised of the risk include:
where the cases are pending, whether the issue is substantive or procedural,
the temporal relationship between the matters, the significance of the issue to
the immediate and long term interests of the clients involved, and the clients'
reasonable expectations in retaining the lawyer. If there is significant risk
of material limitation, then absent informed consent of the affected clients,
the lawyer must refuse one of the representations or withdraw from one or both
matters.

[25] When a lawyer represents or seeks to
represent a class of plaintiffs or defendants in a class-action lawsuit,
unnamed members of the class are ordinarily not considered to be clients of the
lawyer for purposes of applying paragraph (a)(1) of this Rule. Thus, the lawyer
does not typically need to get the consent of such a person before representing
a client suing the person in an unrelated matter. Similarly, a lawyer seeking
to represent an opponent in a class action does not typically need the consent
of an unnamed member of the class whom the lawyer represents in an unrelated
matter.

Nonlitigation Conflicts

[26] Conflicts of interest under paragraphs
(a)(1) and (a)(2) arise in contexts other than litigation. For a discussion of
directly adverse conflicts in transactional matters, see Comment [7]. Relevant
factors in determining whether there is significant potential for material
limitation include the duration and intimacy of the lawyer's relationship with
the client or clients involved, the functions being performed by the lawyer,
the likelihood that disagreements will arise and the likely prejudice to the
client from the conflict. The question is often one of proximity and degree.
See Comment [8].

[27] For example, conflict questions may arise in
estate planning and estate administration. A lawyer may be called upon to
prepare wills for several family members, such as husband and wife, and,
depending upon the circumstances, a conflict of interest may be present. In
estate administration the identity of the client may be unclear under the law
of a particular jurisdiction. Under one view, the client is the fiduciary;
under another view the client is the estate or trust, including its
beneficiaries. In order to comply with conflict of interest rules, the lawyer
should make clear the lawyer's relationship to the parties involved.

[28] Whether a conflict is consentable depends on
the circumstances. For example, a lawyer may not represent multiple parties to
a negotiation whose interests are fundamentally antagonistic to each other, but
common representation is permissible where the clients are generally aligned in
interest even though there is some difference in interest among them. Thus, a
lawyer may seek to establish or adjust a relationship between clients on an
amicable and mutually advantageous basis; for example, in helping to organize a
business in which two or more clients are entrepreneurs, working out the
financial reorganization of an enterprise in which two or more clients have an
interest or arranging a property distribution in settlement of an estate. The
lawyer seeks to resolve potentially adverse interests by developing the
parties' mutual interests. Otherwise, each party might have to obtain separate
representation, with the possibility of incurring additional cost, complication
or even litigation. Given these and other relevant factors, the clients may
prefer that the lawyer act for all of them.

Special Considerations in Common Representation

[29] In considering whether to represent multiple
clients in the same matter, a lawyer should be mindful that if the common
representation fails because the potentially adverse interests cannot be
reconciled, the result can be additional cost, embarrassment and recrimination.
Ordinarily, the lawyer will be forced to withdraw from representing all of the
clients if the common representation fails. In some situations, the risk of
failure is so great that multiple representation is plainly impossible. For
example, a lawyer cannot undertake common representation of clients where contentious
litigation or negotiations between them are imminent or contemplated. Moreover,
because the lawyer is required to be impartial between commonly represented
clients, representation of multiple clients is improper when it is unlikely
that impartiality can be maintained. Generally, if the relationship between the
parties has already assumed antagonism, the possibility that the clients'
interests can be adequately served by common representation is not very good.
Other relevant factors are whether the lawyer subsequently will represent both
parties on a continuing basis and whether the situation involves creating or
terminating a relationship between the parties.

[30] A particularly important factor in
determining the appropriateness of common representation is the effect on
client-lawyer confidentiality and the attorney-client privilege. With regard to
the attorney-client privilege, the prevailing rule is that, as between commonly
represented clients, the privilege does not attach. Hence, it must be assumed
that if litigation eventuates between the clients, the privilege will not
protect any such communications, and the clients should be so advised.

[31] As to the duty of confidentiality, continued
common representation will almost certainly be inadequate if one client asks
the lawyer not to disclose to the other client information relevant to the
common representation. This is so because the lawyer has an equal duty of
loyalty to each client, and each client has the right to be informed of
anything bearing on the representation that might affect that client's
interests and the right to expect that the lawyer will use that information to
that client's benefit. See Rule 1.4. The lawyer should, at the outset of the
common representation and as part of the process of obtaining each client's
informed consent, advise each client that information will be shared and that
the lawyer may have to withdraw from representing one or more or all of the
common clients if one client decides that some matter material to the
representation should be kept from the others. In limited circumstances, it may
be appropriate for the lawyer to proceed with the representation when the
clients have agreed, after being properly informed, that the lawyer will keep
certain information confidential. For example, the lawyer may reasonably
conclude that failure to disclose one client's trade secrets to another client
will not adversely affect representation involving a joint venture between the
clients and agree to keep that information confidential with the informed
consent of both clients.

[32] When seeking to establish or adjust a
relationship between clients, the lawyer should make clear that the lawyer's
role is not that of partisanship normally expected in other circumstances and,
thus, that the clients may be required to assume greater responsibility for
decisions than when each client is separately represented. Any limitations on
the scope of the representation made necessary as a result of the common
representation should be fully explained to the clients at the outset of the
representation. See Rule 1.2(c) and 2.2

[33] Subject to the above limitations, each
client in the common representation has the right to loyal and diligent
representation and the protection of Rule 1.9 concerning the obligations to a
former client. The client also has the right to discharge the lawyer as stated
in Rule 1.16.

Organizational Clients

[34] A lawyer who represents a corporation or
other organization does not, by virtue of that representation, necessarily
represent any constituent or affiliated organization, such as a parent or
subsidiary. See Rule 1.13(a). Thus, the lawyer for an organization is not
barred from accepting representation adverse to an affiliate in an unrelated
matter, unless the circumstances are such that the affiliate should also be
considered a client of the lawyer, there is an understanding between the lawyer
and the organizational client that the lawyer will avoid representation adverse
to the client's affiliates, or the lawyer's obligations to either the
organizational client or the new client are likely to limit materially the
lawyer's representation of the other client.

[35] A lawyer for a corporation or other
organization who is also a member of its board of directors should determine
whether the responsibilities of the two roles may conflict. The lawyer may be
called on to advise the corporation in matters involving actions of the
directors. Consideration should be given to the frequency with which such
situations may arise, the potential intensity of the conflict, the effect of
the lawyer's resignation from the board and the possibility of the
corporation's obtaining legal advice from another lawyer in such situations. If
there is material risk that the dual role will compromise the lawyer's
independence of professional judgment, the lawyer should not serve as a
director or should cease to act as the corporation's lawyer when conflicts of
interest arise. The lawyer should advise the other members of the board that in
some circumstances matters discussed at board meetings while the lawyer is
present in the capacity of director might not be protected by the
attorney-client privilege and that conflict of interest considerations might
require the lawyer's recusal as a director or might require the lawyer and the
lawyer's firm to decline representation of the corporation in a matter.

(a) A lawyer shall not enter into a business transaction
with a client or knowingly acquire an ownership, possessory, security or other
pecuniary interest adverse to a client unless:

(1) the transaction and terms on which the lawyer acquires
the interest are fair and reasonable to the client and are fully disclosed and
transmitted in writing in a manner that can be reasonably understood by the
client;

(2) the client is advised in writing of the desirability of
seeking and is given a reasonable opportunity to seek the advice of independent
legal counsel on the transaction; and

(3) the client gives informed consent, in a writing signed
by the client, to the essential terms of the transaction and the lawyer's role
in the transaction, including whether the lawyer is representing the client in
the transaction.

(b) A lawyer shall not use information relating to
representation of a client to the disadvantage of the client unless the client
gives informed consent, except as permitted or required by these Rules.

(c) A lawyer shall not solicit any substantial gift from a
client, including a testamentary gift, or prepare on behalf of a client an
instrument giving the lawyer or a person related to the lawyer any substantial
gift unless the lawyer or other recipient of the gift is related to the client.
For purposes of this paragraph, related persons include a spouse, child,
grandchild, parent, grandparent or other relative or individual with whom the
lawyer or the client maintains a close, familial relationship.

(d) Prior to the conclusion of representation of a client, a
lawyer shall not make or negotiate an agreement giving the lawyer literary or
media rights to a portrayal or account based in substantial part on information
relating to the representation.

(e) A lawyer shall not provide financial assistance to a
client in connection with pending or contemplated litigation, except that:

(1) a lawyer may advance court costs and expenses of
litigation, the repayment of which may be contingent on the outcome of the
matter; and

(2) a lawyer representing an indigent client may pay court
costs and expenses of litigation on behalf of the client.

(f) A lawyer shall not
accept compensation for representing a client from one other than the client
unless:

(1) the client gives informed
consent;

(2) there is no interference
with the lawyer's independence of professional judgment or with the
client-lawyer relationship; and

(3) information relating to
representation of a client is protected as required by Rule 1.6.

(g) A lawyer who represents
two or more clients shall not participate in making an aggregate settlement of
the claims of or against the clients, or in a criminal case an aggregated
agreement as to guilty or nolo contendere pleas, unless each client gives
informed consent, in a writing signed by the client. The lawyer's disclosure
shall include the existence and nature of all the claims or pleas involved and
of the participation of each person in the settlement.

(h) A lawyer shall not:

(1) make an agreement
prospectively limiting the lawyer's liability to a client for malpractice
unless the client is independently represented in making the agreement; or

(2) settle a claim or
potential claim for such liability with an unrepresented client or former
client unless that person is advised in writing of the desirability of seeking
and is given a reasonable opportunity to seek the advice of independent legal
counsel in connection therewith.

(i) A lawyer shall not
acquire a proprietary interest in the cause of action or subject matter of
litigation the lawyer is conducting for a client, except that the lawyer may:

(1) acquire a lien authorized
by law to secure the lawyer's fee or expenses; and

(2) contract with a client
for a reasonable contingent fee in a civil case.

(j) A lawyer shall not have
sexual relations with a client unless a consensual sexual relationship existed
between them when the client-lawyer relationship commenced.

(k) While lawyers are
associated in a firm, a prohibition in paragraphs (a) through (i) and (l) that
applies to any one of them shall apply to all of them.

(l) A part-time prosecutor
or deputy prosecutor authorized by statute to otherwise engage in the practice
of law shall refrain from representing a private client in any matter wherein
exists an issue upon which said prosecutor has statutory prosecutorial
authority or responsibilities. This restriction is not intended to prohibit
representation in tort cases in which investigation and any prosecution of
infractions has terminated, nor to prohibit representation in family law
matters involving no issue subject to prosecutorial authority or responsibilities.
Upon a prior, express written limitation of responsibility to exclude
prosecutorial authority in matters related to family law, a part-time deputy
prosecutor may fully represent private clients in cases involving family law.

Comment

Business Transactions Between Client and Lawyer

[1] A lawyer's legal skill and training,
together with the relationship of trust and confidence between lawyer and
client, create the possibility of overreaching when the lawyer participates in
a business, property or financial transaction with a client, for example, a
loan or sales transaction or a lawyer investment on behalf of a client. The
requirements of paragraph (a) must be met even when the transaction is not
closely related to the subject matter of the representation, as when a lawyer
drafting a will for a client learns that the client needs money for unrelated
expenses and offers to make a loan to the client. The Rule applies to lawyers
engaged in the sale of goods or services related to the practice of law, for
example, the sale of title insurance or investment services to existing clients
of the lawyer's legal practice. See Rule 5.7. It also applies to lawyers
purchasing property from estates they represent. It does not apply to ordinary
initial fee arrangements between client and lawyer, which are governed by Rule
1.5, although its requirements must be met when the lawyer accepts an interest
in the client's business or other nonmonetary property as payment of all or
part of a fee. Paragraph (a) applies when a lawyer seeks to renegotiate the
terms of the fee arrangement with the client after representation begins in
order to reach a new agreement that is more advantageous to the lawyer than the
initial fee arrangement. In addition, the Rule does not apply to standard
commercial transactions between the lawyer and the client for products or
services that the client generally markets to others, for example, banking or
brokerage services, medical services, products manufactured or distributed by
the client, and utilities' services. In such transactions, the lawyer has no
advantage in dealing with the client, and the restrictions in paragraph (a) are
unnecessary and impracticable.

[2] Paragraph (a)(1) requires that the
transaction itself be fair to the client and that its essential terms be
communicated to the client, in writing, in a manner that can be reasonably
understood. Paragraph (a)(2) requires that the client also be advised, in
writing, of the desirability of seeking the advice of independent legal counsel.
It also requires that the client be given a reasonable opportunity to obtain
such advice. Paragraph (a)(3) requires that the lawyer obtain the client's
informed consent, in a writing signed by the client, both to the essential
terms of the transaction and to the lawyer's role. When necessary, the lawyer
should discuss both the material risks of the proposed transaction, including
any risk presented by the lawyer's involvement, and the existence of reasonably
available alternatives and should explain why the advice of independent legal
counsel is desirable. See Rule 1.0(e) (definition of informed consent).

[3] The risk to a client is greatest when the
client expects the lawyer to represent the client in the transaction itself or
when the lawyer's financial interest otherwise poses a significant risk that
the lawyer's representation of the client will be materially limited by the
lawyer's financial interest in the transaction. Here the lawyer's role requires
that the lawyer must comply, not only with the requirements of paragraph (a),
but also with the requirements of Rule 1.7. Under that Rule, the lawyer must
disclose the risks associated with the lawyer's dual role as both legal adviser
and participant in the transaction, such as the risk that the lawyer will
structure the transaction or give legal advice in a way that favors the
lawyer's interests at the expense of the client. Moreover, the lawyer must
obtain the client's informed consent. In some cases, the lawyer's interest may
be such that Rule 1.7 will preclude the lawyer from seeking the client's
consent to the transaction.

[4] If the client is independently represented
in the transaction, paragraph (a)(2) of this Rule is inapplicable, and the
paragraph (a)(1) requirement for full disclosure is satisfied either by a
written disclosure by the lawyer involved in the transaction or by the client's
independent counsel. The fact that the client was independently represented in
the transaction is relevant in determining whether the agreement was fair and
reasonable to the client as paragraph (a)(1) further requires.

Use of Information Related to Representation

[5] Use of information relating to the
representation to the disadvantage of the client violates the lawyer's duty of
loyalty. Paragraph (b) applies when the information is used to benefit either
the lawyer or a third person, such as another client or business associate of
the lawyer. For example, if a lawyer learns that a client intends to purchase
and develop several parcels of land, the lawyer may not use that information to
purchase one of the parcels in competition with the client or to recommend that
another client make such a purchase. The Rule does not prohibit uses that do
not disadvantage the client. For example, a lawyer who learns a government
agency's interpretation of trade legislation during the representation of one
client may properly use that information to benefit other clients. Paragraph
(b) prohibits disadvantageous use of client information unless the client gives
informed consent, except as permitted or required by these Rules. See Rules
1.2(d), 1.6, 1.9(c), 3.3, 4.1(b), 8.1 and 8.3.

Gifts to Lawyers

[6] A lawyer may accept a gift from a client,
if the transaction meets general standards of fairness. For example, a simple
gift such as a present given at a holiday or as a token of appreciation is
permitted. If a client offers the lawyer a more substantial gift, paragraph (c)
does not prohibit the lawyer from accepting it, although such a gift may be
voidable by the client under the doctrine of undue influence, which treats
client gifts as presumptively fraudulent. In any event, due to concerns about
overreaching and imposition on clients, a lawyer may not suggest that a
substantial gift be made to the lawyer or for the lawyer's benefit, except
where the lawyer is related to the client as set forth in paragraph (c).

[7] If effectuation of a substantial gift
requires preparing a legal instrument such as a will or conveyance the client
should have the detached advice that another lawyer can provide. The sole
exception to this Rule is where the client is a relative of the donee.

[8] This Rule does not prohibit a lawyer from
seeking to have the lawyer or a partner or associate of the lawyer named as
executor of the client's estate or to another potentially lucrative fiduciary
position. Nevertheless, such appointments will be subject to the general
conflict of interest provision in Rule 1.7 when there is a significant risk
that the lawyer's interest in obtaining the appointment will materially limit
the lawyer's independent professional judgment in advising the client
concerning the choice of an executor or other fiduciary. In obtaining the
client's informed consent to the conflict, the lawyer should advise the client
concerning the nature and extent of the lawyer's financial interest in the
appointment, as well as the availability of alternative candidates for the
position.

Literary Rights

[9] An agreement by which a lawyer acquires
literary or media rights concerning the conduct of the representation creates a
conflict between the interests of the client and the personal interests of the
lawyer. Measures suitable in the representation of the client may detract from
the publication value of an account of the representation. Paragraph (d) does not
prohibit a lawyer representing a client in a transaction concerning literary
property from agreeing that the lawyer's fee shall consist of a share in
ownership in the property, if the arrangement conforms to Rule 1.5 and
paragraphs (a) and (i).

Financial Assistance

[10] Lawyers may not subsidize lawsuits or
administrative proceedings brought on behalf of their clients, including making
or guaranteeing loans to their clients for living expenses, because to do so
would encourage clients to pursue lawsuits that might not otherwise be brought
and because such assistance gives lawyers too great a financial stake in the
litigation. These dangers do not warrant a prohibition on a lawyer lending a
client court costs and litigation expenses, including the expenses of medical
examination and the costs of obtaining and presenting evidence, because these
advances are virtually indistinguishable from contingent fees and help ensure
access to the courts. Similarly, an exception allowing lawyers representing
indigent clients to pay court costs and litigation expenses regardless of
whether these funds will be repaid is warranted.

Person Paying for a Lawyer's Services

[11] Lawyers are frequently asked to represent a
client under circumstances in which a third person will compensate the lawyer,
in whole or in part. The third person might be a relative or friend, an
indemnitor (such as a liability insurance company) or a co-client (such as a
corporation sued along with one or more of its employees). Because third-party
payers frequently have interests that differ from those of the client,
including interests in minimizing the amount spent on the representation and in
learning how the representation is progressing, lawyers are prohibited from
accepting or continuing such representations unless the lawyer determines that
there will be no interference with the lawyer's independent professional
judgment and there is informed consent from the client. See also Rule 5.4(c)
(prohibiting interference with a lawyer's professional judgment by one who
recommends, employs or pays the lawyer to render legal services for another).

[12] Sometimes, it will be sufficient for the
lawyer to obtain the client's informed consent regarding the fact of the
payment and the identity of the third-party payer. If, however, the fee
arrangement creates a conflict of interest for the lawyer, then the lawyer must
comply with Rule 1. 7. The lawyer must also conform to the requirements of Rule
1.6 concerning confidentiality. Under Rule 1.7(a), a conflict of interest
exists if there is significant risk that the lawyer's representation of the
client will be materially limited by the lawyer's own interest in the fee
arrangement or by the lawyer's responsibilities to the third-party payer (for
example, when the third-party payer is a co-client). Under Rule 1.7(b), the
lawyer may accept or continue the representation with the informed consent of
each affected client, unless the conflict is nonconsentable under that
paragraph. Under Rule 1.7(b), the informed consent must be confirmed in
writing.

Aggregate Settlements

[13] Differences in willingness to make or accept
an offer of settlement are among the risks of common representation of multiple
clients by a single lawyer. Under Rule 1.7, this is one of the risks that should
be discussed before undertaking the representation, as part of the process of
obtaining the clients' informed consent. In addition, Rule 1.2(a) protects each
client's right to have the final say in deciding whether to accept or reject an
offer of settlement and in deciding whether to enter a guilty or nolo
contendere plea in a criminal case. The rule stated in this paragraph is a
corollary of both these Rules and provides that, before any settlement offer or
plea bargain is made or accepted on behalf of multiple clients, the lawyer must
inform each of them about all the material terms of the settlement, including
what the other clients will receive or pay if the settlement or plea offer is
accepted. See also Rule 1.0(e) (definition of informed consent). Lawyers
representing a class of plaintiffs or defendants, or those proceeding
derivatively, may not have a full client-lawyer relationship with each member
of the class; nevertheless, such lawyers must comply with applicable rules
regulating notification of class members and other procedural requirements
designed to ensure adequate protection of the entire class.

Limiting Liability and Settling Malpractice Claims

[14] Agreements prospectively limiting a lawyer's
liability for malpractice are prohibited unless the client is independently
represented in making the agreement because they are likely to undermine
competent and diligent representation. Also, many clients are unable to
evaluate the desirability of making such an agreement before a dispute has arisen,
particularly if they are then represented by the lawyer seeking the agreement.
This paragraph does not, however, prohibit a lawyer from entering into an
agreement with the client to arbitrate legal malpractice claims, provided such
agreements are enforceable and the client is fully informed of the scope and
effect of the agreement. Nor does this paragraph limit the ability of lawyers
to practice in the form of a limited-liability entity, where permitted by law,
provided that each lawyer remains personally liable to the client for his or
her own conduct and the firm complies with any conditions required by law, such
as provisions requiring client notification or maintenance of adequate
liability insurance. Nor does it prohibit an agreement in accordance with Rule
1.2 that defines the scope of the representation, although a definition of
scope that makes the obligations of representation illusory will amount to an
attempt to limit liability.

[15] Agreements settling a claim or a potential
claim for malpractice are not prohibited by this Rule. Nevertheless, in view of
the danger that a lawyer will take unfair advantage of an unrepresented client
or former client, the lawyer must first advise such a person in writing of the
appropriateness of independent representation in connection with such a
settlement. In addition, the lawyer must give the client or former client a
reasonable opportunity to find and consult independent counsel.

Acquiring Proprietary Interest in Litigation

[16] Paragraph (i) states the traditional general
rule that lawyers are prohibited from acquiring a proprietary interest in
litigation. Like paragraph (e), the general rule has its basis in common law
champerty and maintenance and is designed to avoid giving the lawyer too great
an interest in the representation. In addition, when the lawyer acquires an
ownership interest in the subject of the representation, it will be more
difficult for a client to discharge the lawyer if the client so desires. The
Rule is subject to specific exceptions developed in decisional law and
continued in these Rules. The exception for certain advances of the costs of
litigation is set forth in paragraph (e). In addition, paragraph (i) sets forth
exceptions for liens authorized by law to secure the lawyer's fees or expenses
and contracts for reasonable contingent fees. The law of each jurisdiction
determines which liens are authorized by law. These may include liens granted
by statute, liens originating in common law and liens acquired by contract with
the client. When a lawyer acquires by contract a security interest in property
other than that recovered through the lawyer's efforts in the litigation, such
an acquisition is a business or financial transaction with a client and is
governed by the requirements of paragraph (a). Contracts for contingent fees in
civil cases are governed by Rule 1.5.

Client-Lawyer Sexual Relationships

[17] The relationship between lawyer and client
is a fiduciary one in which the lawyer occupies the highest position of trust
and confidence. The relationship is almost always unequal; thus, a sexual
relationship between lawyer and client can involve unfair exploitation of the
lawyer's fiduciary role, in violation of the lawyer's basic ethical obligation
not to use the trust of the client to the client's disadvantage. In addition,
such a relationship presents a significant danger that, because of the lawyer's
emotional involvement, the lawyer will be unable to represent the client
without impairment of the exercise of independent professional judgment.
Moreover, a blurred line between the professional and personal relationships
may make it difficult to predict to what extent client confidences will be
protected by the attorney-client evidentiary privilege, since client
confidences are protected by privilege only when they are imparted in the
context of the client-lawyer relationship. Because of the significant danger of
harm to client interests and because the client's own emotional involvement
renders it unlikely that the client could give adequate informed consent, this
Rule prohibits the lawyer from having sexual relations with a client regardless
of whether the relationship is consensual and regardless of the absence of
prejudice to the client.

[18] Sexual relationships that predate the
client-lawyer relationship are not prohibited. Issues relating to the
exploitation of the fiduciary relationship and client dependency are diminished
when the sexual relationship existed prior to the commencement of the
client-lawyer relationship. However, before proceeding with the representation
in these circumstances, the lawyer should consider whether the lawyer's ability
to represent the client will be materially limited by the relationship. See
Rule 1.7(a)(2).

[19] When the client is an organization,
paragraph (j) of this Rule prohibits a lawyer for the organization (whether
inside counsel or outside counsel) from having a sexual relationship with a
constituent of the organization who supervises, directs or regularly consults
with that lawyer concerning the organization's legal matters.

Imputation of Prohibitions

[20] Under paragraph (k), a prohibition on
conduct by an individual lawyer in paragraphs (a) through (i) and (l) also
applies to all lawyers associated in a firm with the personally prohibited
lawyer. For example, one lawyer in a firm may not enter into a business
transaction with a client of another member of the firm without complying with
paragraph (a), even if the first lawyer is not personally involved in the
representation of the client. The prohibition set forth in paragraph (j) is
personal and is not applied to associated lawyers.

Part-time prosecutor or deputy prosecutor

[21] Under paragraph (l) special rules are
provided for part-time prosecutors and deputy prosecutors.

(a) A lawyer who has formerly represented a client in a
matter shall not thereafter represent another person in the same or a
substantially related matter in which that person's interests are materially
adverse to the interests of the former client unless the former client gives
informed consent, confirmed in writing.

(b) A lawyer shall not knowingly represent a person in the
same or a substantially related matter in which a firm with which the lawyer
formerly was associated had previously represented a client

(1) whose interests are materially adverse to that person;
and

(2) about whom the lawyer had acquired information protected
by Rules 1. 6 and 1.9(c) that is material to the matter; unless the former
client gives informed consent, confirmed in writing.

(c) A lawyer who has formerly represented a client in a
matter or whose present or former firm has formerly represented a client in a
matter shall not thereafter:

(1) use information relating to the representation to the disadvantage
of the former client except as these Rules would permit or require with respect
to a client, or when the information has become generally known; or

(2) reveal information relating to the representation except
as these Rules would permit or require with respect to a client.

Comment

[1] After termination of a client-lawyer
relationship, a lawyer has certain continuing duties with respect to
confidentiality and conflicts of interest and thus may not represent another
client except in conformity with this Rule. Under this Rule, for example, a
lawyer could not properly seek to rescind on behalf of a new client a contract
drafted on behalf of the former client. So also a lawyer who has prosecuted an
accused person could not properly represent the accused in a subsequent civil
action against the government concerning the same transaction. Nor could a
lawyer who has represented multiple clients in a matter represent one of the
clients against the others in the same or a substantially related matter after
a dispute arose among the clients in that matter, unless all affected clients
give informed consent. See Comment [9]. Current and former government lawyers
must comply with this Rule to the extent required by Rule 1.11.

[2] The scope of a “matter” for purposes of
this Rule depends on the facts of a particular situation or transaction. The
lawyer's involvement in a matter can also be a question of degree. When a
lawyer has been directly involved in a specific transaction, subsequent
representation of other clients with materially adverse interests in that
transaction clearly is prohibited. On the other hand, a lawyer who recurrently
handled a type of problem for a former client is not precluded from later
representing another client in a factually distinct problem of that type even
though the subsequent representation involves a position adverse to the prior
client. Similar considerations can apply to the reassignment of military
lawyers between defense and prosecution functions within the same military jurisdictions.
The underlying question is whether the lawyer was so involved in the matter
that the subsequent representation can be justly regarded as a changing of
sides in the matter in question.

[3] Matters are “substantially related” for
purposes of this Rule if they involve the same transaction or legal dispute or
if there otherwise is a substantial risk that confidential factual information
as would normally have been obtained in the prior representation would
materially advance the client's position in the subsequent matter. For example,
a lawyer who has represented a businessperson and learned extensive private
financial information about that person may not then represent that person's
spouse in seeking a divorce. Similarly, a lawyer who has previously represented
a client in securing environmental permits to build a shopping center would be
precluded from representing neighbors seeking to oppose rezoning of the
property on the basis of environmental considerations; however, the lawyer
would not be precluded, on the grounds of substantial relationship, from
defending a tenant of the completed shopping center in resisting eviction for
nonpayment of rent. Information that has been disclosed to the public or to
other parties adverse to the former client ordinarily will not be
disqualifying. Information acquired in a prior representation may have been
rendered obsolete by the passage of time, a circumstance that may be relevant
in determining whether two representations are substantially related. In the case
of an organizational client, general knowledge of the client's policies and
practices ordinarily will not preclude a subsequent representation; on the
other hand, knowledge of specific facts gained in a prior representation that
are relevant to the matter in question ordinarily will preclude such a
representation. A former client is not required to reveal the confidential
information learned by the lawyer in order to establish a substantial risk that
the lawyer has confidential information to use in the subsequent matter. A
conclusion about the possession of such information may be based on the nature
of the services the lawyer provided the former client and information that
would in ordinary practice be learned by a lawyer providing such services.

Lawyers Moving Between Firms

[4] When lawyers have been associated within a
firm but then end their association, the question of whether a lawyer should
undertake representation is more complicated. There are several competing
considerations. First, the client previously represented by the former firm
must be reasonably assured that the principle of loyalty to the client is not
compromised. Second, the rule should not be so broadly cast as to preclude
other persons from having reasonable choice of legal counsel. Third, the rule
should not unreasonably hamper lawyers from forming new associations and taking
on new clients after having left a previous association. In this connection, it
should be recognized that today many lawyers practice in firms, that many lawyers
to some degree limit their practice to one field or another, and that many move
from one association to another several times in their careers. If the concept
of imputation were applied with unqualified rigor, the result would be radical
curtailment of the opportunity of lawyers to move from one practice setting to
another and of the opportunity of clients to change counsel.

[5] Paragraph (b) operates to disqualify the
lawyer only when the lawyer involved has actual knowledge of information
protected by Rules 1.6 and 1.9(c). Thus, if a lawyer while with one firm
acquired no knowledge or information relating to a particular client of the
firm, and that lawyer later joined another firm, neither the lawyer
individually nor the second firm is disqualified from representing another
client in the same or a related matter even though the interests of the two
clients conflict. See Rule 1.10(b) for the restrictions on a firm once a lawyer
has terminated association with the firm.

[6] Application of paragraph (b) depends on a
situation's particular facts, aided by inferences, deductions or working
presumptions that reasonably may be made about the way in which lawyers work
together. A lawyer may have general access to files of all clients of a law
firm and may regularly participate in discussions of their affairs; it should
be inferred that such a lawyer in fact is privy to all information about all
the firm's clients. In contrast, another lawyer may have access to the files of
only a limited number of clients and participate in discussions of the affairs
of no other clients; in the absence of information to the contrary, it should
be inferred that such a lawyer in fact is privy to information about the
clients actually served but not those of other clients. In such an inquiry, the
burden of proof should rest upon the firm whose disqualification is sought.

[7] Independent of the question of
disqualification of a firm, a lawyer changing professional association has a
continuing duty to preserve confidentiality of information about a client
formerly represented. See Rules 1.6 and 1.9(c).

[8] Paragraph (c) provides that information
acquired by the lawyer in the course of representing a client may not
subsequently be used or revealed by the lawyer to the disadvantage of the
client. However, the fact that a lawyer has once served a client does not
preclude the lawyer from using generally known information about that client
when later representing another client.

[9] The provisions of this Rule are for the
protection of former clients and can be waived if the client gives informed
consent, which consent must be confirmed in writing under paragraphs (a) and
(b). See Rule 1.0(e). With regard to the effectiveness of an advance waiver,
see Comment [22] to Rule 1.7. With regard to disqualification of a firm with
which a lawyer is or was formerly associated, see Rule 1.10.

(a) While lawyers are associated in a firm, none of them
shall knowingly represent a client when any one of them practicing alone would
be prohibited from doing so by Rules 1.7, 1.9, or 2.2 unless the prohibition is
based on a personal interest of the prohibited lawyer and does not present a
significant risk of materially limiting the representation of the client by the
remaining lawyers in the firm.

(b) When a lawyer has terminated an association with a firm,
the firm is not prohibited from thereafter representing a person with interests
materially adverse to those of a client represented by the formerly associated
lawyer and not currently represented by the firm unless:

(1) the matter is the same or substantially related to that
in which the formerly associated lawyer represented the client; and

(2) any lawyer remaining in the firm has information protected
by Rules 1.6 and 1.9(c) that is material to the matter.

(c) When a lawyer becomes associated with a firm, no lawyer
associated in the firm shall knowingly represent a person in a matter in which
that lawyer is disqualified under Rule 1.9 unless:

(1) the personally disqualified lawyer did not have primary
responsibility for the matter that causes the disqualification under Rule 1.9;

(2) the personally disqualified lawyer is timely screened
from any participation in the matter and is apportioned no part of the fee
therefrom; and

(3) written notice is promptly given to any affected former
client to enable it to ascertain compliance with the provisions of this rule.

(d) A disqualification prescribed by this rule may be waived
by the affected client under the conditions stated in Rule 1.7.

(e) The disqualification of lawyers associated in a firm
with former or current government lawyers is governed by Rule 1.11.

Comment

Definition of “Firm”

[1] For purposes of the Rules of Professional
Conduct, the term “firm” denotes lawyers in a law partnership, professional
corporation, sole proprietorship or other association authorized to practice
law; or lawyers employed in a legal services organization or the legal
department of a corporation or other organization. See Rule 1.0(c). Whether two
or more lawyers constitute a firm within this definition can depend on the
specific facts. See Rule 1.0, Comments [2]--[4].

Principles of Imputed Disqualification

[2] The rule of imputed disqualification stated
in paragraph (a) gives effect to the principle of loyalty to the client as it
applies to lawyers who practice in a law firm. Such situations can be
considered from the premise that a firm of lawyers is essentially one lawyer
for purposes of the rules governing loyalty to the client, or from the premise
that each lawyer is vicariously bound by the obligation of loyalty owed by each
lawyer with whom the lawyer is associated. Paragraph (a) operates only among
the lawyers currently associated in a firm. When a lawyer moves from one firm
to another, the situation is governed by Rules 1.9(b), and 1.10(b) and 1.10(c).

[3] The rule in paragraph (a) does not prohibit
representation where neither questions of client loyalty nor protection of
confidential information are presented.

[4] The rule in paragraph (a) also does not
prohibit representation by others in the law firm where the person prohibited
from involvement in a matter is a nonlawyer, such as a paralegal or legal
secretary. Nor does paragraph (a) prohibit representation if the lawyer is
prohibited from acting because of events before the person became a lawyer, for
example, work that the person did while a law student. Such persons, however,
ordinarily must be screened from any personal participation in the matter to
avoid communication to others in the firm of confidential information that both
the nonlawyers and the firm have a legal duty to protect. See Rules 1.0(k) and
5.3.

[5] Rule 1.10(b) operates to permit a law firm,
under certain circumstances, to represent a person with interests directly
adverse to those of a client represented by a lawyer who formerly was
associated with the firm. The Rule applies regardless of when the formerly
associated lawyer represented the client. However, the law firm may not
represent a person with interests adverse to those of a present client of the
firm, which would violate Rule 1.7. Moreover, the firm may not represent the
person where the matter is the same or substantially related to that in which
the formerly associated lawyer represented the client and any other lawyer
currently in the firm has material information protected by Rules 1.6 and
1.9(c).

[6] Where the conditions of paragraph (c) are
met, imputation is removed, and consent to the new representation is not
required. Lawyers should be aware, however, that courts may impose more
stringent obligations in ruling upon motions to disqualify a lawyer from
pending litigation. Requirements for screening procedures are stated in Rule
1.0(k). Paragraph (c)(2) does not prohibit the screened lawyer from receiving a
salary or partnership share established by prior independent agreement, but
that lawyer may not receive compensation directly related to the matter in
which the lawyer is disqualified. Notice, including a description of the screened
lawyer's prior representation and of the screening procedures employed,
generally should be given as soon as practicable after the need for screening
becomes apparent.

[7] Rule 1.10(d) removes imputation with the
informed consent of the affected client or former client under the conditions
stated in Rule 1.7. The conditions stated in Rule 1.7 require the lawyer to
determine that the representation is not prohibited by Rule 1.7(b) and that
each affected client or former client has given informed consent to the
representation, confirmed in writing. In some cases, the risk may be so severe
that the conflict may not be cured by client consent. For a discussion of the
effectiveness of client waivers of conflicts that might arise in the future,
see Rule 1.7, Comment [22]. For a definition of informed consent, see Rule
1.0(e).

[8] Where a lawyer has joined a private firm
after having represented the government, imputation is governed by Rule 1.11(b)
and (c), not this Rule. Under Rule 1.11(d), where a lawyer represents the
government after having served clients in private practice, nongovernmental
employment or in another government agency, former-client conflicts are not
imputed to government lawyers associated with the individually disqualified
lawyer.

[9] Where a lawyer is prohibited from engaging
in certain transactions under Rule 1.8, paragraph (k) of that Rule, and not
this Rule, determines whether that prohibition also applies to other lawyers
associated in a firm with the personally prohibited lawyer.

(a) Except as law may otherwise expressly permit, a lawyer
who has formerly served as a public officer or employee of the government:

(1) is subject to Rule 1.9(c); and

(2) shall not otherwise represent a client in connection
with a matter in which the lawyer participated personally and substantially as
a public officer or employee, unless the appropriate government agency gives
its informed consent, confirmed in writing to the representation.

(b) When a lawyer is disqualified from representation under
paragraph (a), no lawyer in the firm with which that lawyer is associated may
knowingly undertake or continue representation in such a matter unless:

(1) the disqualified lawyer is timely screened from any
participation in the matter and is apportioned no part of the fee therefrom;
and

(2) written notice is promptly given to the appropriate
government agency to enable it to ascertain compliance with the provisions of
this rule.

(c) Except as law may otherwise expressly permit, a lawyer
having information that the lawyer knows is confidential government information
about a person acquired when the lawyer was a public officer or employee, may
not represent a private client whose interests are adverse to that person in a
matter in which the information could be used to the material disadvantage of
that person. As used in this Rule, the term “confidential government
information” means information that has been obtained under governmental
authority and which, at the time this Rule is applied, the government is
prohibited by law from disclosing to the public or has a legal privilege not to
disclose and which is not otherwise available to the public. A firm with which
that lawyer is associated may undertake or continue representation in the
matter only if the disqualified lawyer is timely screened from any
participation in the matter and is apportioned no part of the fee therefrom.

(d) Except as law may otherwise expressly permit, a lawyer
currently serving as a public officer or employee:

(1) is subject to Rules 1.7 and 1.9; and

(2) shall not:

(i) participate in a matter in
which the lawyer participated personally and substantially while in private
practice or nongovernmental employment, unless the appropriate government
agency gives its informed consent, confirmed in writing; or

(ii) negotiate for private
employment with any person who is involved as a party or as lawyer for a party
in a matter in which the lawyer is participating personally and substantially,
except that a lawyer serving as a law clerk to a judge, other adjudicative
officer, or arbitrator may negotiate for private employment as permitted by
Rule 1.12(b) and subject to the conditions stated in Rule 1.12(b).

(e) As used in this Rule, the term “matter” includes:

(1) any judicial or other proceeding, application, request
for a ruling or other determination, contract, claim, controversy,
investigation, charge, accusation, arrest or other particular matter involving
a specific party or parties; and

(2) any other matter covered by the conflict of interest
rules of the appropriate government agency.

Comment

[1] A lawyer who has served or is currently
serving as a public officer or employee is personally subject to the Rules of
Professional Conduct, including the prohibition against concurrent conflicts of
interest stated in Rule 1.7. In addition, such a lawyer may be subject to
statutes and government regulations regarding conflict of interest. Such
statutes and regulations may circumscribe the extent to which the government
agency may give consent under this Rule. See Rule 1.0(e) for the definition of
informed consent.

[2] Paragraphs (a)(1), (a)(2) and (d)(1)
restate the obligations of an individual lawyer who has served or is currently
serving as an officer or employee of the government toward a former government
or private client. Rule 1.10 is not applicable to the conflicts of interest
addressed by this Rule. Rather, paragraph (b) sets forth a special imputation
rule for former government lawyers that provides for screening and notice.
Because of the special problems raised by imputation within a government
agency, paragraph (d) does not impute the conflicts of a lawyer currently
serving as an officer or employee of the government to other associated
government officers or employees, although ordinarily it will be prudent to
screen such lawyers.

[3] Paragraphs (a)(2) and (d)(2) apply
regardless of whether a lawyer is adverse to a former client and are thus
designed not only to protect the former client, but also to prevent a lawyer
from exploiting public office for the advantage of another client. For example,
a lawyer who has pursued a claim on behalf of the government may not pursue the
same claim on behalf of a later private client after the lawyer has left
government service, except when authorized to do so by the government agency
under paragraph (a). Similarly, a lawyer who has pursued a claim on behalf of a
private client may not pursue the claim on behalf of the government, except
when authorized to do so by paragraph (d). As with paragraphs (a)(1) and
(d)(1), Rule 1.10 is not applicable to the conflicts of interest addressed by
these paragraphs.

[4] This Rule represents a balancing of
interests. On the one hand, where the successive clients are a government
agency and another client, public or private, the risk exists that power or
discretion vested in that agency might be used for the special benefit of the
other client. A lawyer should not be in a position where benefit to the other
client might affect performance of the lawyer's professional functions on
behalf of the government. Also, unfair advantage could accrue to the other
client by reason of access to confidential government information about the
client's adversary obtainable only through the lawyer's government service. On
the other hand, the rules governing lawyers presently or formerly employed by a
government agency should not be so restrictive as to inhibit transfer of
employment to and from the government. The government has a legitimate need to
attract qualified lawyers as well as to maintain high ethical standards. Thus a
former government lawyer is disqualified only from particular matters in which
the lawyer participated personally and substantially. The provisions for
screening and waiver in paragraph (b) are necessary to prevent the
disqualification rule from imposing too severe a deterrent against entering
public service. The limitation of disqualification in paragraphs (a)(2) and
(d)(2) to matters involving a specific party or parties, rather than extending
disqualification to all substantive issues on which the lawyer worked, serves a
similar function.

[5] When a lawyer has been employed by one
government agency and then moves to a second government agency, it may be
appropriate to treat that second agency as another client for purposes of this
Rule, as when a lawyer is employed by a city and subsequently is employed by a
federal agency. However, because the conflict of interest is governed by
paragraph (d), the latter agency is not required to screen the lawyer as
paragraph (b) requires a law firm to do. The question of whether two government
agencies should be regarded as the same or different clients for conflict of
interest purposes is beyond the scope of these Rules. See Rule 1.13 Comment
[6].

[6] Paragraphs (b) and (c) contemplate a
screening arrangement. See Rule 1.0(k) (requirements for screening procedures).
These paragraphs do not prohibit a lawyer from receiving a salary or
partnership share established by prior independent agreement, but that lawyer
may not receive compensation directly relating the lawyer's compensation to the
fee in the matter in which the lawyer is disqualified.

[7] Notice, including a description of the
screened lawyer's prior representation and of the screening procedures
employed, generally should be given as soon as practicable after the need for
screening becomes apparent.

[8] Paragraph (c) operates only when the lawyer
in question has knowledge of the information, which means actual knowledge; it
does not operate with respect to information that merely could be imputed to
the lawyer.

[9] Paragraphs (a) and (d) do not prohibit a
lawyer from jointly representing a private party and a government agency when
doing so is permitted by Rule 1.7 and is not otherwise prohibited by law.

[10] For purposes of paragraph (e) of this Rule,
a “matter” may continue in another form. In determining whether two particular
matters are the same, the lawyer should consider the extent to which the
matters involve the same basic facts, the same or related parties, and the time
elapsed.

(a) Except as stated in paragraph (d), a lawyer shall not
represent anyone in connection with a matter in which the lawyer participated
personally and substantially as a judge or other adjudicative officer,
arbitrator, mediator or other third-party neutral, or law clerk to such a
person, unless all parties to the proceeding give informed consent, confirmed
in writing.

(b) A lawyer shall not negotiate for employment with any
person who is involved as a party or as lawyer for a party in a matter in which
the lawyer is participating personally and substantially as a judge or other
adjudicative officer or as an arbitrator, mediator or other third-party
neutral. A lawyer serving as a law clerk to any such person may negotiate for
employment with a party or lawyer involved in a matter in which the clerk is
participating personally and substantially, but only after the lawyer has
notified the law clerk's employer.

(c) If a lawyer is disqualified by paragraph (a), no lawyer
in a firm with which that lawyer is associated may knowingly undertake or
continue representation in the matter unless:

(1) the disqualified lawyer is timely screened from any
participation in the matter and is apportioned no part of the fee therefrom;
and

(2) written notice is promptly given to the parties and any
appropriate tribunal to enable them to ascertain compliance with the provisions
of this rule.

(d) An arbitrator selected as a partisan of a party in a
multi-member arbitration panel is not prohibited from subsequently representing
that party.

Comment

[1] This Rule generally parallels Rule 1.11.
The term “personally and substantially” signifies that a judge who was a member
of a multimember court, and thereafter left judicial office to practice law, is
not prohibited from representing a client in a matter pending in the court, but
in which the former judge did not participate. So also the fact that a former
judge exercised administrative responsibility in a court does not prevent the
former judge from acting as a lawyer in a matter where the judge had previously
exercised remote or incidental administrative responsibility that did not
affect the merits. Compare the Comment to Rule 1.11. The term “adjudicative
officer” includes such officials as judges pro tempore, referees, special
masters, hearing officers and other parajudicial officers, and also lawyers who
serve as part-time judges. The Indiana Code of Judicial Conduct provides that a
part-time judge, judge pro tempore or retired judge recalled to active service,
may not “act as a lawyer in any proceeding in which he served as a judge or in
any other proceeding related thereto.” Although phrased differently from this
Rule, those rules correspond in meaning.

[2] Like former judges, lawyers who have served
as arbitrators, mediators or other third-party neutrals may be asked to
represent a client in a matter in which the lawyer participated personally and
substantially. This Rule forbids such representation unless all of the parties
to the proceedings give their informed consent, confirmed in writing. See Rule
1.0(e) and (b). Other law or codes of ethics governing third-party neutrals may
impose more stringent standards of personal or imputed disqualification. See
Rule 2.4.

[3] Although lawyers who serve as third-party neutrals
do not have information concerning the parties that is protected under Rule
1.6, they typically owe the parties an obligation of confidentiality under law
or codes of ethics governing third-party neutrals. Thus, paragraph (c) provides
that conflicts of the personally disqualified lawyer will be imputed to other
lawyers in a law firm unless the conditions of this paragraph are met.

[4] Requirements for screening procedures are
stated in Rule 1.0(k). Paragraph (c)(1) does not prohibit the screened lawyer
from receiving a salary or partnership share established by prior independent
agreement, but that lawyer may not receive compensation directly related to the
matter in which the lawyer is disqualified.

[5] Notice, including a description of the screened
lawyer's prior representation and of the screening procedures employed,
generally should be given as soon as practicable after the need for screening
becomes apparent.

(a) A lawyer employed or retained by an organization
represents the organization acting through its duly authorized constituents.

(b) If a lawyer for an organization knows that an officer,
employee or other person associated with the organization is engaged in action,
intends to act or refuses to act in a matter related to the representation that
is a violation of a legal obligation to the organization, or a violation of law
which reasonably might be imputed to the organization, and that is likely to
result in substantial injury to the organization, then the lawyer shall proceed
as is reasonably necessary in the best interest of the organization. Unless the
lawyer reasonably believes that it is not necessary in the best interest of the
organization to do so, the lawyer shall refer the matter to higher authority in
the organization, including, if warranted by the circumstances to the highest
authority that can act on behalf of the organization as determined by
applicable law.

(c) Except as provided in paragraph (d), if

(1) despite the lawyer's efforts in accordance with
paragraph (b) the highest authority that can act on behalf of the organization
insists upon or fails to address in a timely and appropriate manner an action,
or a refusal to act, that is clearly a violation of law and

(2) the lawyer reasonably believes that the violation is
reasonably certain to result in substantial injury to the organization, then
the lawyer may reveal information relating to the representation whether or not
Rule 1.6 permits such disclosure, but only if and to the extent the lawyer
reasonably believes necessary to prevent substantial injury to the
organization.

(d) Paragraph (c) shall not apply with respect to
information relating to a lawyer's representation of an organization to
investigate an alleged violation of law, or to defend the organization or an
officer, employee or other constituent associated with the organization against
a claim arising out of an alleged violation of law.

(e) A lawyer who reasonably believes that he or she has been
discharged because of the lawyer's actions taken pursuant to paragraphs (b) or
(c), or who withdraws under circumstances that require or permit the lawyer to
take action under either of those paragraphs, shall proceed as the lawyer
reasonably believes necessary to assure that the organization's highest
authority is informed of the lawyer's discharge or withdrawal.

(f) In dealing with an organization's directors, officers,
employees, members, shareholders or other constituents, a lawyer shall explain
the identity of the client when the lawyer knows or reasonably should know that
the organization's interests are adverse to those of the constituents with whom
the lawyer is dealing.

(g) A lawyer representing an organization may also represent
any of its directors, officers, employees, members, shareholders or other
constituents, subject to the provisions of Rule 1.7. If the organization's
consent to the dual representation is required by Rule 1.7, the consent shall
be given by an appropriate official of the organization other than the
individual who is to be represented, or by the shareholders.

Comment

The Entity as the Client

[1] An organizational client is a legal
entity, but it cannot act except through its officers, directors, employees,
shareholders and other constituents. Officers, directors, employees and
shareholders are the constituents of the corporate organizational client. The
duties defined in this Comment apply equally to unincorporated associations.
“Other constituents” as used in this Comment means the positions equivalent to
officers, directors, employees and shareholders held by persons acting for
organizational clients that are not corporations.

[2] When one of the constituents of an
organizational client communicates with the organization's lawyer in that
person's organizational capacity, the communication is protected by Rule 1.6.
Thus, by way of example, if an organizational client requests its lawyer to
investigate allegations of wrongdoing, interviews made in the course of that
investigation between the lawyer and the client's employees or other
constituents are covered by Rule 1.6. This does not mean, however, that
constituents of an organizational client are the clients of the lawyer. The
lawyer may not disclose to such constituents information relating to the representation
except for disclosures explicitly or impliedly authorized by the organizational
client in order to carry out the representation or as otherwise permitted by
Rule 1. 6.

[3] When constituents of the organization make
decisions for it, the decisions ordinarily must be accepted by the lawyer even
if their utility or prudence is doubtful. Decisions concerning policy and
operations, including ones entailing serious risk, are not as such in the
lawyer's province. Paragraph (b) makes clear, however, that when the lawyer
knows that the organization is likely to be substantially injured by action of
an officer or other constituent that violates a legal obligation to the
organization or is in violation of law that might be imputed to the
organization, the lawyer must proceed as is reasonably necessary in the best
interest of the organization. As defined in Rule 1.0(f), knowledge can be
inferred from circumstances, and a lawyer cannot ignore the obvious.

[4] In determining how to proceed under
paragraph (b), the lawyer should give due consideration to the seriousness of
the violation and its consequences, the responsibility in the organization and
the apparent motivation of the person involved, the policies of the
organization concerning such matters, and any other relevant considerations.
Ordinarily, referral to a higher authority would be necessary. In some
circumstances, however, it may be appropriate for the lawyer to ask the
constituent to reconsider the matter; for example, if the circumstances involve
a constituent's innocent misunderstanding of law and subsequent acceptance of
the lawyer's advice, the lawyer may reasonably conclude that the best interest
of the organization does not require that the matter be referred to higher
authority. If a constituent persists in conduct contrary to the lawyer's
advice, it will be necessary for the lawyer to take steps to have the matter
reviewed by a higher authority in the organization. If the matter is of
sufficient seriousness and importance or urgency to the organization, referral
to higher authority in the organization may be necessary even if the lawyer has
not communicated with the constituent. Any measures taken should, to the extent
practicable, minimize the risk of revealing information relating to the representation
to persons outside the organization. Even in circumstances where a lawyer is
not obligated by Rule 1.13 to proceed, a lawyer may bring to the attention of
an organizational client, including its highest authority, matters that the
lawyer reasonably believes to be of sufficient importance to warrant doing so
in the best interest of the organization.

[5] Paragraph (b) also makes clear that when it
is reasonably necessary to enable the organization to address the matter in a
timely and appropriate manner, the lawyer must refer the matter to higher
authority, including, if warranted by the circumstances, the highest authority
that can act on behalf of the organization under applicable law. The
organization's highest authority to whom a matter may be referred ordinarily
will be the board of directors or similar governing body. However, applicable
law may prescribe that under certain conditions the highest authority reposes
elsewhere, for example, in the independent directors of a corporation.

Relation to Other Rules

[6] The authority and responsibility provided
in this Rule are concurrent with the authority and responsibility provided in
other Rules. In particular, this Rule does not limit or expand the lawyer's
responsibility under Rules 1.8, 1.16, 3.3 or 4.1. Paragraph (c) of this Rule
supplements Rule 1.6(b) by providing an additional basis upon which the lawyer
may reveal information relating to the representation, but does not modify,
restrict, or limit the provisions of Rule 1.6(b)(1)--(6). Under paragraph (c)
the lawyer may reveal such information only when the organization's highest
authority insists upon or fails to address threatened or ongoing action that is
clearly a violation of law, and then only to the extent the lawyer reasonably
believes necessary to prevent reasonably certain substantial injury to the
organization. It is not necessary that the lawyer's services be used in
furtherance of the violation, but it is required that the matter be related to
the lawyer's representation of the organization. If the lawyer's services are
being used by an organization to further a crime or fraud by the organization,
Rules 1.6(b)(2) and 1.6(b)(3) may permit the lawyer to disclose confidential
information. In such circumstances Rule 1.2(d) may also be applicable, in which
event, withdrawal from the representation under Rule 1.16(a)(1) may be
required.

[7] Paragraph (d) makes clear that the
authority of a lawyer to disclose information relating to a representation in
circumstances described in paragraph (c) does not apply with respect to
information relating to a lawyer's engagement by an organization to investigate
an alleged violation of law or to defend the organization or an officer,
employee or other person associated with the organization against a claim
arising out of an alleged violation of law. This is necessary in order to
enable organizational clients to enjoy the full benefits of legal counsel in
conducting an investigation or defending against a claim.

[8] A lawyer who reasonably believes that he or
she has been discharged because of the lawyer's actions taken pursuant to
paragraph (b) or (c), or who withdraws in circumstances that require or permit
the lawyer to take action under either of these paragraphs, must proceed as the
lawyer reasonably believes necessary to assure that the organization's highest
authority is informed of the lawyer's discharge or withdrawal.

Government Agency

[9] The duty defined in this Rule applies to
governmental organizations. Defining precisely the identity of the client and
prescribing the resulting obligations of such lawyers may be more difficult in
the government context and is a matter beyond the scope of these Rules. See
Scope [18]. Although in some circumstances the client may be a specific agency,
it may also be a branch of government, such as the executive branch, or the
government as a whole. For example, if the action or failure to act involves
the head of a bureau, either the department of which the bureau is a part or
the relevant branch of government may be the client for purposes of this Rule.
Moreover, in a matter involving the conduct of government officials, a
government lawyer may have authority under applicable law to question such
conduct more extensively than that of a lawyer for a private organization in
similar circumstances. Thus, when the client is a governmental organization, a
different balance may be appropriate between maintaining confidentiality and
assuring that the wrongful act is prevented or rectified, for public business
is involved. In addition, duties of lawyers employed by the government or
lawyers in military service may be defined by statutes and regulation. This
Rule does not limit that authority. See Scope.

Clarifying the Lawyer's Role

[10] There are times when the organization's
interest may be or become adverse to those of one or more of its constituents.
In such circumstances the lawyer should advise any constituent, whose interest
the lawyer finds adverse to that of the organization of the conflict or
potential conflict of interest, that the lawyer cannot represent such
constituent, and that such person may wish to obtain independent
representation. Care must be taken to assure that the individual understands
that, when there is such adversity of interest, the lawyer for the organization
cannot provide legal representation for that constituent individual, and that
discussions between the lawyer for the organization and the individual may not
be privileged.

[11] Whether such a warning should be given by
the lawyer for the organization to any constituent individual may turn on the
facts of each case.

Dual Representation

[12] Paragraph (g) recognizes that a lawyer for
an organization may also represent a principal officer or major shareholder.

Derivative Actions

[13] Under generally prevailing law, the
shareholders or members of a corporation may bring suit to compel the directors
to perform their legal obligations in the supervision of the organization.
Members of unincorporated associations have essentially the same right. Such an
action may be brought nominally by the organization, but usually is, in fact, a
legal controversy over management of the organization.

[14] The question can arise whether counsel for
the organization may defend such an action. The proposition that the
organization is the lawyer's client does not alone resolve the issue. Most
derivative actions are a normal incident of an organization's affairs, to be
defended by the organization's lawyer like any other suit. However, if the
claim involves serious charges of wrongdoing by those in control of the
organization, a conflict may arise between the lawyer's duty to the
organization and the lawyer's relationship with the board. In those
circumstances, Rule 1.7 governs who should represent the directors and the
organization.

(a) When a client's capacity to make adequately
considered decisions in connection with a representation is diminished, whether
because of minority, mental impairment or for some other reason, the lawyer
shall, as far as reasonably possible, maintain a normal client-lawyer
relationship with the client.

(b) When the lawyer reasonably believes that the client
has diminished capacity, is at risk of substantial physical, financial or other
harm unless action is taken and cannot adequately act in the client's own
interest, the lawyer may take reasonably necessary protective action, including
consulting with individuals or entities that have the ability to take action to
protect the client and, in appropriate cases, seeking the appointment of a
guardian ad litem, conservator or guardian.

(c) Information relating to the representation of a
client with diminished capacity is protected by Rule 1.6. When taking
protective action pursuant to paragraph (b), the lawyer is impliedly authorized
under Rule 1.6(a) to reveal information about the client, but only to the
extent reasonably necessary to protect the client's interests.

(d) This Rule is not violated if the lawyer acts in good
faith to comply with the Rule.

Comment

[1] The normal client-lawyer relationship is
based on the assumption that the client, when properly advised and assisted, is
capable of making decisions about important matters. When the client is a minor
or suffers from a diminished mental capacity, however, maintaining the ordinary
client-lawyer relationship may not be possible in all respects. In particular,
a severely incapacitated person may have no power to make legally binding
decisions. Nevertheless, a client with diminished capacity often has the
ability to understand, deliberate upon, and reach conclusions about matters
affecting the client's own well-being. For example, children as young as five
or six years of age, and certainly those of ten or twelve, are regarded as
having opinions that are entitled to weight in legal proceedings concerning
their custody. So also, it is recognized that some persons of advanced age can
be quite capable of handling routine financial matters while needing special
legal protection concerning major transactions.

[2] The fact that a client suffers a disability
does not diminish the lawyer's obligation to treat the client with attention
and respect. Even if the person has a legal representative, the lawyer should
as far as possible accord the represented person the status of client,
particularly in maintaining communication.

[3] The client may wish to have family members
or other persons participate in discussions with the lawyer. When necessary to
assist in the representation, the presence of such persons generally does not
affect the applicability of the attorney-client evidentiary privilege.
Nevertheless, the lawyer must keep the client's interests foremost and, except
for protective action authorized under paragraph (b), must look to the client, and
not family members, to make decisions on the client's behalf.

[4] If a legal representative has already been
appointed for the client, the lawyer should ordinarily look to the
representative for decisions on behalf of the client. In matters involving a minor,
whether the lawyer should look to the parents as natural guardians may depend
on the type of proceeding or matter in which the lawyer is representing the
minor. If the lawyer represents the guardian as distinct from the ward, and is
aware that the guardian is acting adversely to the ward's interest, the lawyer
may have an obligation to prevent or rectify the guardian's misconduct. See
Rule 1.2(d).

Taking Protective Action

[5] If a lawyer reasonably believes that a
client is at risk of substantial physical, financial or other harm unless
action is taken, and that a normal client-lawyer relationship cannot be
maintained as provided in paragraph (a) because the client lacks sufficient
capacity to communicate or to make adequately considered decisions in
connection with the representation, then paragraph (b) permits the lawyer to
take protective measures deemed necessary. Such measures could include:
consulting with family members, using a reconsideration period to permit
clarification or improvement of circumstances, using voluntary surrogate
decision making tools such as durable powers of attorney or consulting with
support groups, professional services, adult-protective agencies or other
individuals or entities that have the ability to protect the client. In taking
any protective action, the lawyer should be guided by such factors as the
wishes and values of the client to the extent known, the client's best
interests and the goals of intruding into the client's decision making autonomy
to the least extent feasible, maximizing client capacities and respecting the
client's family and social connections.

[6] In determining the extent of the client's
diminished capacity, the lawyer should consider and balance such factors as:
the client's ability to articulate reasoning leading to a decision, variability
of state of mind and ability to appreciate consequences of a decision; the
substantive fairness of a decision; and the consistency of a decision with the
known long-term commitments and values of the client. In appropriate
circumstances, the lawyer may seek guidance from an appropriate diagnostician.

[7] If a legal representative has not been
appointed, the lawyer should consider whether appointment of a guardian ad
litem, conservator or guardian is necessary to protect the client's interests.
Thus, if a client with diminished capacity has substantial property that should
be sold for the client's benefit, effective completion of the transaction may
require appointment of a legal representative. In addition, rules of procedure
in litigation sometimes provide that minors or persons with diminished capacity
must be represented by a guardian or next friend if they do not have a general
guardian. In many circumstances, however, appointment of a legal representative
may be more expensive or traumatic for the client than circumstances in fact
require. Evaluation of such circumstances is a matter entrusted to the
professional judgment of the lawyer. In considering alternatives, however, the
lawyer should be aware of any law that requires the lawyer to advocate the
least restrictive action on behalf of the client.

Disclosure of the Client's Condition

[8] Disclosure of the client's diminished
capacity could adversely affect the client's interests. For example, raising
the question of diminished capacity could, in some circumstances, lead to
proceedings for involuntary commitment. Information relating to the
representation is protected by Rule 1.6. Therefore, unless authorized to do so,
the lawyer may not disclose such information. When taking protective action
pursuant to paragraph (b), the lawyer is impliedly authorized to make the
necessary disclosures, even when the client directs the lawyer to the contrary.
Nevertheless, given the risks of disclosure, paragraph (c) limits what the
lawyer may disclose in consulting with other individuals or entities or seeking
the appointment of a legal representative. At the very least, the lawyer should
determine whether it is likely that the person or entity consulted with will
act adversely to the client's interests before discussing matters related to
the client. The lawyer's position in such cases is an unavoidably difficult
one.

Emergency Legal Assistance

[9] In an emergency where the health, safety or
a financial interest of a person with seriously diminished capacity is
threatened with imminent and irreparable harm, a lawyer may take legal action
on behalf of such a person even though the person is unable to establish a
client-lawyer relationship or to make or express considered judgments about the
matter, when the person or another acting in good faith on that person's behalf
has consulted with the lawyer. Even in such an emergency, however, the lawyer
should not act unless the lawyer reasonably believes that the person has no other
lawyer, agent or other representative available. The lawyer should take legal
action on behalf of the person only to the extent reasonably necessary to
maintain the status quo or otherwise avoid imminent and irreparable harm. A
lawyer who undertakes to represent a person in such an exigent situation has
the same duties under these Rules as the lawyer would with respect to a client.

[10] A lawyer who acts on behalf of a person with
seriously diminished capacity in an emergency should keep the confidences of
the person as if dealing with a client, disclosing them only to the extent
necessary to accomplish the intended protective action. The lawyer should
disclose to any tribunal involved and to any other counsel involved the nature
of his or her relationship with the person. The lawyer should take steps to
regularize the relationship or implement other protective solutions as soon as
possible. Normally, a lawyer would not seek compensation for such emergency
actions taken.

(a) A lawyer shall hold property of clients or third persons
that is in a lawyer's possession in connection with a representation separate
from the lawyer's own property. Funds shall be kept in a separate account
maintained in the state where the lawyer's office is situated, or elsewhere
with the consent of the client or third person. Other property shall be
identified as such and appropriately safeguarded. Complete records of such
account funds and other property shall be kept by the lawyer and shall be
preserved for a period of five years after termination of the representation.

(b) A lawyer may deposit his or her own funds reasonably
sufficient to maintain a nominal balance in a client trust account.

(c) A lawyer shall deposit into a client trust account
legal fees and expenses that have been paid in advance, to be withdrawn by the
lawyer only as fees are earned or expenses incurred.

(d) Upon receiving funds or other property in which the
client or third person has an interest, a lawyer shall promptly notify the
client or third person. Except as stated in this rule or otherwise permitted by
law or by agreement with the client, a lawyer shall promptly deliver to the
client or third person any funds or other property that the client or third
person is entitled to receive and, upon request by the client or third person,
shall promptly render a full accounting regarding such property.

(e) When in the course of representation a lawyer is in
possession of property in which two or more persons (one of whom may be the
lawyer) claim interests, the property shall be kept separate by the lawyer
until the dispute is resolved. The lawyer shall promptly distribute all
portions of the property as to which the interests are not in dispute.

(f) Except as provided in paragraph (g) of this rule, a
lawyer or law firm shall create and maintain an interest-bearing trust account
for clients' funds which are nominal in amount or to be held for a short period
of time so that they could not earn income for the client in excess of the
costs incurred to secure such income (hereinafter sometimes referred to as an
“IOLTA account”) in compliance with the following provisions:

(1) Client funds shall be deposited in a lawyer's or law
firm's IOLTA account unless the funds can earn income for the client in excess
of the costs incurred to secure such income. A lawyer or law firm shall
establish a separate interest-bearing trust account for clients' funds which
are neither nominal in amount nor to be held for a short period of time and which
could earn income for the client in excess of costs for a particular client or
client's matter. All of the interest on such account, net of any transaction
costs, shall be paid to the client, and no earnings from such account shall be
made available to a lawyer or law firm.

(2) No earnings from such an IOLTA account shall be made
available to a lawyer or law firm.

(3) The IOLTA account shall include all clients' funds which
are nominal in amount or to be held for a short period of time.

(4) An IOLTA account may be established with any financial
institution (i) authorized by federal or state law to do business in Indiana,
(ii) insured by the Federal Deposit Insurance Corporation or its equivalent,
and (iii) approved as a depository for trust accounts pursuant to Indiana
Admission and Discipline Rules, Rule 23, Section 29. Funds in each IOLTA
account shall be subject to withdrawal upon request and without delay and
without risk to principal by reason of said withdrawal.

(5) Participating financial institutions shall maintain
IOLTA accounts which pay the highest interest rate or dividend generally
available from the institution to its non-IOLTA account customers when IOLTA
accounts meet or exceed the same minimum balance or other account eligibility
qualifications, if any. In determining the highest interest rate or dividend
generally available from the institution to its non-IOLTA accounts, eligible
institutions may consider factors, in addition to the IOLTA account balance,
customarily considered by the institution when setting interest rates or
dividends for its customers, provided that such factors do not discriminate
between IOLTA accounts and accounts of non-IOLTA customers, and that these
factors do not include that the account is an IOLTA account. All interest
earned net of fees or charges shall be remitted to the Indiana Bar Foundation
(the “Foundation”), which is designated in paragraph (i) of this rule to
organize and administer the IOLTA program, and the depository institution shall
submit reports thereon as set forth below.

(6) Lawyers or law firms depositing client funds in an IOLTA
account established pursuant to this rule shall, on forms approved by the
Foundation, direct the depository institution:

(a) to remit all interest or dividends, net of reasonable
service charges or fees, if any, on the average monthly balance in the account,
or as otherwise computed in accordance with the institution's standard
accounting practice, at least quarterly, solely to the Foundation. The
depository institution may remit the interest or dividends on all of its IOLTA
accounts in a lump sum; however, the depository institution must provide, for
each individual IOLTA account, the information to the lawyer or law firm and to
the Foundation required by subparagraphs (f)(6)(B) and (f)(6)(C) of this rule;

(b) to transmit with each remittance to the Foundation a
statement showing the name of the lawyer or law firm for whom the remittance is
sent, the rate of interest applied, and such other information as is reasonably
required by the Foundation;

(c) to transmit to the depositing lawyer or law firm a
periodic account statement for the IOLTA account reflecting the amount of
interest paid to the Foundation, the rate of interest applied, the average
account balance for the period for which the interest was earned, and such
other information as is reasonably required by the Foundation; and

(d) to waive any reasonable service charge that exceeds the
interest earned on any IOLTA account during a reporting period (“excess
charge”), or bill the excess charge to the Foundation.

(7) Any IOLTA account which has or may have the net effect
of costing the IOLTA program more in fees than earned in interest over a period
of time may, at the discretion of the Foundation, be exempted from and removed
from the IOLTA program. Exemption of an IOLTA account from the IOLTA program
revokes the permission to use the Foundation's tax identification number for
that account. Exemption of such account from the IOLTA program shall not
relieve the lawyer and/or law firm from the obligation to maintain the property
of clients and third persons separately, as required above, in a non-interest
bearing account.

(8) The IOLTA program will issue refunds when interest has
been remitted in error, whether the error is the bank's or the lawyer's.
Requests for refunds must be submitted in writing by the bank, the lawyer, or
the law firm on a timely basis, accompanied by documentation that confirms the
amount of interest paid to the IOLTA program. As needed for auditing purposes,
the IOLTA program may request additional documentation to support the request.
The refund will be remitted to the appropriate financial institution for
transmittal at the lawyer's direction after appropriate accounting and
reporting. In no event will the refund exceed the amount of interest actually
received by the IOLTA program.

(9) All interest transmitted to the Foundation shall be
held, invested and distributed periodically in accordance with a plan of
distribution which shall be prepared by the Foundation and approved at least
annually by the Supreme Court of Indiana, for the following purposes:

(a) to pay or provide for all costs, expenses and fees
associated with the administration of the IOLTA program;

(d) for such other programs for the benefit of the public as
are specifically approved by the Supreme Court from time to time.

(10) The information contained in the statements forwarded to
the Foundation under subparagraph (f)(6) of this rule shall remain confidential
and the provisions of Rule 1.6 (Confidentiality of Information), are not hereby
abrogated; therefore the Foundation shall not release any information contained
in any such statement other than as a compilation of data from such statements,
except as directed in writing by the Supreme Court.

(11) The Foundation shall have full authority to and shall,
from time to time, prepare and submit to the Supreme Court for approval, forms,
procedures, instructions and guidelines necessary and appropriate to implement
the provisions set forth in this rule and, after approval thereof by the Court,
shall promulgate same.

(g) Every lawyer admitted to practice in this State shall
annually certify to this Court, pursuant to Ind.Admis.Disc.R. 2(f), that all
client funds which are nominal in amount or to be held for a short period of
time by the lawyer or the lawyer's law firm so that they could not earn income
for the client in excess of the costs incurred to secure such income are held
in an IOLTA account, or that the lawyer is exempt because:

(1) the lawyer or law firm's client trust account has been
exempted and removed from the IOLTA program by the Foundation pursuant to
subparagraph (f)(7) of this rule; or

(2) the lawyer:

(a) is not engaged in the private practice of law;

(b) is not engaged in the private practice of law in Indiana
that involves holding client or third party funds in trust;

(c) does not have an office within the State of Indiana;

(d) is a judge, attorney general, public defender, U.S.
attorney, district attorney, on duty with the armed services or employed by a
local, state or federal government, and is not otherwise engaged in the private
practice of law;

(e) is a corporate counsel or teacher of law and is not
otherwise engaged in the private practice of law;

(f) has been exempted by an order of general or special
application of this Court which is cited in the certification; or

(g) compliance with paragraph (f) would work an undue
hardship on the lawyer or would be extremely impractical, based either on the
geographic distance between the lawyer's principal office and the closest
depository institution which is participating in the IOLTA program, or on other
compelling and necessitous factors.

(h) In the exercise of a lawyer's good faith judgment in
determining whether funds of a client can earn income in excess of costs, a
lawyer shall take into consideration the following factors:

(1) the amount of interest
which the funds would earn during the period they are expected to be deposited;

(2) the cost of establishing and
administering the account, including the cost of the lawyer's services,
accounting fees, and tax reporting costs and procedures;

(3) the capability of a financial
institution, a lawyer or a law firm to calculate and pay income to individual
clients;

(4) any other circumstances that
affect the ability of the client's funds to earn a net return for the client;
and

(5) the nature of the
transaction(s) involved. The determination of whether a client's funds are
nominal or short-term so that they could not earn income in excess of costs
shall rest in the sound judgment of the lawyer or law firm. No lawyer shall be
charged with an ethical impropriety or other breach of professional conduct
based on the good faith exercise of such judgment.

(i) The Foundation is hereby
designated as the entity to organize and administer the IOLTA program
established by paragraph (f) of this rule in accordance with the following provisions:

(1) The Board of Directors of
the Foundation (the “Board”) shall have general supervisory authority over the
administration of the IOLTA program, subject to the continuing jurisdiction of
the Supreme Court.

(2) The Board shall receive the
net earnings from IOLTA accounts established in accordance with paragraph (f)
of this rule and shall make appropriate temporary investments of IOLTA program
funds pending disbursement of such funds.

(3) The Board shall, by grants,
appropriations and other appropriate measures, make disbursements from the
IOLTA program funds, including current and accumulated net earnings, in
accordance with the plan of distribution approved by the Supreme Court from
time to time referenced in subparagraph (f)(9) of this rule.

(4) The Board shall maintain
proper records of all IOLTA program receipts and disbursements, which records
shall be audited or reviewed annually by a certified public accountant selected
by the Board. The Board shall annually cause to be presented to the Supreme
Court a reviewed or audited financial statement of its IOLTA program receipts
and expenditures for the prior year. The report shall not identify any clients
of lawyers or law firms or reveal confidential information. The statement shall
be filed with the Clerk of the Supreme Court and a summary thereof shall be
published in the next available issue of one or more state-wide publications
for attorneys, such as Res Gestae and The Indiana Lawyer.

(5) The president and other
members of the Board shall administer the IOLTA program without compensation,
but may be reimbursed for their reasonable and necessary expenses incurred in
the performance of their duties, and shall be indemnified by the Foundation
against any liability or expense arising directly or indirectly out of the good
faith performance of their duties.

(6) The Board shall monitor
attorney compliance with the provisions of this rule and periodically report to
the Supreme Court those attorneys not in compliance with the provisions of Rule
1.15.

(7) In the event the IOLTA
program or its administration by the Foundation is terminated, all assets of
the IOLTA program, including any program funds then on hand, shall be
transferred in accordance with the Order of the Supreme Court terminating the
IOLTA program or its administration by the Foundation; provided, such transfer
shall be to an entity which will not violate the requirements the Foundation
must observe regarding transfer of its assets in order to retain its tax-exempt
status under the Internal Revenue Code of 1986, as amended, or similar future
provisions of law.

Comment

[1] A lawyer should hold property of others
with the care required of a professional fiduciary. Securities should be kept
in a safe deposit box, except when some other form of safekeeping is warranted
by special circumstances. All property that is the property of clients or third
persons, including prospective clients, must be kept separate from the lawyer's
business and personal property and, if monies, in one or more trust accounts.
Separate trust accounts may be warranted when administering estate monies or
acting in similar fiduciary capacities. A lawyer should maintain on a current
basis books and records in accordance with generally accepted accounting
practice and comply with any recordkeeping rules established by law or court
order. See, e.g., ABA Model

Financial Recordkeeping Rule.

[2] While normally it is impermissible to
commingle the lawyer's own funds with client funds, paragraph (b) provides that
it is permissible when necessary to maintain a nominal balance in the account.
Accurate records must be kept regarding which part of the funds are the
lawyer's.

[3] Lawyers often receive funds from which the
lawyer's fee will be paid. The lawyer is not required to remit to the client,
funds that the lawyer reasonably believes represent fees owed. However, a
lawyer may not hold funds to coerce a client into accepting the lawyer's
contention. The disputed portion of the funds must be kept in a trust account
and the lawyer should suggest means for prompt resolution of the dispute, such
as arbitration. The undisputed portion of the funds shall be promptly
distributed.

[4] Paragraph (e) also recognizes that third
parties may have lawful claims against specific funds or other property in a
lawyer's custody, such as a client's creditor who has a lien on funds recovered
in a personal injury action. A lawyer may have a duty under applicable law to
protect such third-party claims against wrongful interference by the client. In
such cases, when the third-party claim is not frivolous under applicable law,
the lawyer must refuse to surrender the property to the client until the claims
are resolved. A lawyer should not unilaterally assume to arbitrate a dispute
between the client and the third party, but, when there are substantial grounds
for dispute as to the person entitled to the funds, the lawyer may file an
action to have a court resolve the dispute.

[5] The obligations of a lawyer under this Rule
are independent of those arising from activity other than rendering legal
services. For example, a lawyer who serves only as an escrow agent is governed
by the applicable law relating to fiduciaries even though the lawyer does not
render legal services in the transaction and is not governed by this Rule.

[6] A lawyers' fund for client protection
provides a means through the collective efforts of the bar to reimburse persons
who have lost money or property as a result of dishonest conduct of a lawyer.
Where such a fund has been established, a lawyer must participate where it is
mandatory, and, even when it is voluntary, the lawyer should participate.

(a) Except as stated in paragraph (c), a lawyer shall not
represent a client or, where representation has commenced, shall withdraw from
the representation of a client if:

(1) the representation will result in violation of the Rules
of Professional Conduct or other law;

(2) the lawyer's physical or mental condition materially
impairs the lawyer's ability to represent the client; or

(3) the lawyer is discharged.

(b) Except as stated in paragraph (c), a lawyer may withdraw
from representing a client if:

(1) withdrawal can be accomplished without material adverse
effect on the interests of the client;

(2) the client persists in a course of action involving the
lawyer's services that the lawyer reasonably believes is criminal or
fraudulent;

(3) the client has used the lawyer's services to perpetrate
a crime or fraud;

(4) a client insists upon taking action that the lawyer
considers repugnant or with which the lawyer has a fundamental disagreement;

(5) the client fails substantially to fulfill an obligation
to the lawyer regarding the lawyer's services and has been given reasonable
warning that the lawyer will withdraw unless the obligation is fulfilled;

(6) the representation will result in an unreasonable
financial burden on the lawyer or has been rendered unreasonably difficult by
the client; or

(7) other good cause for withdrawal exists.

(c) A lawyer must comply with applicable law requiring
notice to or permission of a tribunal when terminating a representation. When
ordered to do so by a tribunal, a lawyer shall continue representation
notwithstanding good cause for terminating the representation.

(d) Upon termination of representation, a lawyer shall take
steps to the extent reasonably practicable to protect a client's interests,
such as giving reasonable notice to the client, allowing time for employment of
other counsel, surrendering papers and property to which the client is entitled
and refunding any advance payment of fee or expense that has not been earned or
incurred. The lawyer may retain papers relating to the client to the extent
permitted by other law.

Comment

[1] A lawyer should not accept representation
in a matter unless it can be performed competently, promptly, without improper
conflict of interest and to completion. Ordinarily, a representation in a
matter is completed when the agreed-upon assistance has been concluded. See Rules
1.2(c) and 6.5. See also Rule 1.3, Comment [4].

Mandatory Withdrawal

[2] A lawyer ordinarily must decline or
withdraw from representation if the client demands that the lawyer engage in
conduct that is illegal or violates the Rules of Professional Conduct or other
law. The lawyer is not obliged to decline or withdraw simply because the client
suggests such a course of conduct; a client may make such a suggestion in the
hope that a lawyer will not be constrained by a professional obligation.

[3] When a lawyer has been appointed to
represent a client, withdrawal ordinarily requires approval of the appointing
authority. See also Rule 6.2. Similarly, court approval or notice to the court
is often required by applicable law before a lawyer withdraws from pending
litigation. Difficulty may be encountered if withdrawal is based on the
client's demand that the lawyer engage in unprofessional conduct. The court may
request an explanation for the withdrawal, while the lawyer may be bound to
keep confidential the facts that would constitute such an explanation. The
lawyer's statement that professional considerations require termination of the
representation ordinarily should be accepted as sufficient.. Lawyers should be
mindful of their obligations to both clients and the court under Rules 1.6 and
3.3.

Discharge

[4] A client has a right to discharge a lawyer
at any time, with or without cause, subject to liability for payment for the
lawyer's services. Where future dispute about the withdrawal may be
anticipated, it may be advisable to prepare a written statement reciting the
circumstances.

[5] Whether a client can discharge appointed
counsel may depend on applicable law. A client seeking to do so should be given
a full explanation of the consequences. These consequences may include a
decision by the appointing authority that appointment of successor counsel is
unjustified, thus requiring self-representation by the client.

[6] If the client has severely diminished
capacity, the client may lack the legal capacity to discharge the lawyer, and
in any event the discharge may be seriously adverse to the client's interests.
The lawyer should make special effort to help the client consider the
consequences and may take reasonably necessary protective action as provided in
Rule 1.14.

Optional Withdrawal

[7] A lawyer may withdraw from representation
in some circumstances. The lawyer has the option to withdraw if it can be
accomplished without material adverse effect on the client's interests.
Withdrawal is also justified if the client persists in a course of action that
the lawyer reasonably believes is criminal or fraudulent, for a lawyer is not
required to be associated with such conduct even if the lawyer does not further
it. Withdrawal is also permitted if the lawyer's services were misused in the
past even if that would materially prejudice the client. The lawyer may also
withdraw where the client insists on taking action that the lawyer considers
repugnant or with which the lawyer has a fundamental disagreement.

[8] A lawyer may withdraw if the client refuses
to abide by the terms of an agreement relating to the representation, such as
an agreement concerning fees or court costs or an agreement limiting the
objectives of the representation.

Assisting the Client upon Withdrawal

[9] Even if the lawyer has been unfairly
discharged by the client, a lawyer must take all reasonable steps to mitigate
the consequences to the client. The lawyer may retain papers as security for a
fee only to the extent permitted by law. See Rule 1.15.

A lawyer or a law firm may sell or purchase a law practice,
or an area of law practice, including goodwill, if the following conditions are
satisfied:

(a) The seller ceases to engage in the private practice of
law, or in the area of practice that has been sold, in the geographic area in
which the practice has been conducted.

(b) The entire practice, or the entire area of practice, is
sold to one or more lawyers or law firms.

(c) The seller gives written notice to each of the seller's
clients regarding:

(1) the proposed sale;

(2) the client's right to retain other counsel or to take
possession of the file; and

(3) the fact that the client's consent to the transfer of
the client's files will be presumed if the client does not take any action or
does not otherwise object within ninety (90) days of receipt of the notice.

If a client cannot be given notice, the
representation of that client may be transferred to the purchaser only upon
entry of an order so authorizing by a court having jurisdiction. The seller may
disclose to the court in camera information relating to the representation only
to the extent necessary to obtain an order authorizing the transfer of a file.

(d) The fees charged clients shall not be increased by reason
of the sale.

Comment

[1] The practice of law is a profession, not
merely a business. Clients are not commodities that can be purchased and sold
at will. Pursuant to this Rule, when a lawyer or an entire firm ceases to
practice, or ceases to practice in an area of law, and other lawyers or firms
take over the representation, the selling lawyer or firm may obtain
compensation for the reasonable value of the practice as may withdrawing
partners of law firms. See Rules 5.4 and 5.6.

Termination of Practice by the Seller

[2] The requirement that all of the private
practice, or all of an area of practice, be sold is satisfied if the seller in
good faith makes the entire practice, or the area of practice, available for
sale to the purchasers. The fact that a number of the seller's clients decide
not to be represented by the purchasers but take their matters elsewhere,
therefore, does not result in a violation. Return to private practice as a
result of an unanticipated change in circumstances does not necessarily result
in a violation. For example, a lawyer who has sold the practice to accept an
appointment to judicial office does not violate the requirement that the sale
be attendant to cessation of practice if the lawyer later resumes private
practice upon being defeated in a contested or a retention election for the
office or resigns from a judiciary position.

[3] The requirement that the seller cease to
engage in the private practice of law does not prohibit employment as a lawyer
on the staff of a public agency or a legal services entity that provides legal
services to the poor, or as in-house counsel to a business.

[4] This Rule also permits a lawyer or law firm
to sell an area of practice. If an area of practice is sold and the lawyer
remains in the active practice of law, the lawyer must cease accepting any
matters in the area of practice that has been sold, either as counsel or
co-counsel or by assuming joint responsibility for a matter in connection with
the division of a fee with another lawyer as would otherwise be permitted by
Rule 1.5(e). For example, a lawyer with a substantial number of estate planning
matters and a substantial number of probate administration cases may sell the
estate planning portion of the practice but remain in the practice of law by
concentrating on probate administration; however, that practitioner may not
thereafter accept any estate planning matters. Although a lawyer who leaves a
jurisdiction or geographical area typically would sell the entire practice,
this Rule permits the lawyer to limit the sale to one or more areas of the
practice, thereby preserving the lawyer's right to continue practice in the
areas of the practice that were not sold.

Sale of Entire Practice or Entire Area of Practice

[5] The Rule requires that the seller's entire
practice, or an entire area of practice, be sold. The prohibition against sale
of less than an entire practice area protects those clients whose matters are
less lucrative and who might find it difficult to secure other counsel if a
sale could be limited to substantial fee-generating matters. The purchasers are
required to undertake all client matters in the practice or practice area,
subject to client consent. This requirement is satisfied, however, even if a
purchaser is unable to undertake a particular client matter because of a
conflict of interest.

Client Confidences, Consent and Notice

[6] Negotiations between seller and prospective
purchaser prior to disclosure of information relating to a specific
representation of an identifiable client no more violate the confidentiality
provisions of Rule 1. 6 than do preliminary discussions concerning the possible
association of another lawyer or mergers between firms, with respect to which
client consent is not required. Providing the purchaser access to
client-specific information relating to the representation and to the file,
however, requires client consent. The Rule provides that before such
information can be disclosed by the seller to the purchaser the client must be
given actual written notice of the contemplated sale, including the identity of
the purchaser, and must be told that the decision to consent or make other
arrangements must be made within 90 days. If nothing is heard from the client
within that time, consent to the sale is presumed.

[7] A lawyer or law firm ceasing to practice
cannot be required to remain in practice because some clients cannot be given
actual notice of the proposed purchase. Since these clients cannot themselves
consent to the purchase or direct any other disposition of their files, the
Rule requires an order from a court having jurisdiction authorizing their
transfer or other disposition. The Court can be expected to determine whether
reasonable efforts to locate the client have been exhausted, and whether the
absent client's legitimate interests will be served by authorizing the transfer
of the file so that the purchaser may continue the representation. Preservation
of client confidences requires that the petition for a court order be
considered in camera.

[8] All elements of client autonomy, including
the client's absolute right to discharge a lawyer and transfer the
representation to another, survive the sale of the practice or area of
practice.

Fee Arrangements Between Client and Purchaser

[9] The sale may not be financed by increases
in fees charged the clients of the practice. Existing arrangements between the
seller and the client as to fees and the scope of the work must be honored by
the purchaser.

Other Applicable Ethical Standards

[10] Lawyers participating in the sale of a law
practice or a practice area are subject to the ethical standards applicable to
involving another lawyer in the representation of a client. These include, for
example, the seller's obligation to exercise competence in identifying a
purchaser qualified to assume the practice and the purchaser's obligation to
undertake the representation competently (see Rule 1.1); the obligation to
avoid disqualifying conflicts, and to secure the client's informed consent for
those conflicts that can be agreed to (see Rule 1.7 regarding conflicts and
Rule 1.0(e) for the definition of informed consent); and the obligation to
protect information relating to the representation (see Rules 1.6 and 1.9).

[11] If approval of the substitution of the purchasing
lawyer for the selling lawyer is required by the rules of any tribunal in which
a matter is pending, such approval must be obtained before the matter can be
included in the sale (see Rule 1.16).

Applicability of the Rule

[12] This Rule applies to the sale of a law
practice of a deceased, disabled or disappeared lawyer. Thus, the seller may be
represented by a non-lawyer representative not subject to these Rules. Since,
however, no lawyer may participate in a sale of a law practice which does not conform
to the requirements of this Rule, the representatives of the seller as well as
the purchasing lawyer can be expected to see to it that they are met.

[13] Admission to or retirement from a law
partnership or professional association, retirement plans and similar
arrangements, and a sale of tangible assets of a law practice, do not
constitute a sale or purchase governed by this Rule.

[14] This Rule does not apply to the transfers of
legal representation between lawyers when such transfers are unrelated to the
sale of a practice or an area of practice.

(a) A person who discusses with a lawyer the possibility of
forming a client-lawyer relationship with respect to a matter is a prospective
client.

(b) Even when no client-lawyer relationship ensues, a lawyer
who has had discussions with a prospective client shall not use or reveal
information learned in the consultation, except as Rule 1.9 would permit with
respect to information of a former client.

(c) A lawyer subject to paragraph (b) shall not represent a
client with interests materially adverse to those of a prospective client in
the same or a substantially related matter if the lawyer received information
from the prospective client that could be significantly harmful to that person
in the matter, except as provided in paragraph (d). If a lawyer is disqualified
from representation under this paragraph, no lawyer in a firm with which that
lawyer is associated may knowingly undertake or continue representation in such
a matter, except as provided in paragraph (d).

(d) When a lawyer has received disqualifying information as
defined in paragraph (c), representation is permissible if:

(1) both the affected client and the prospective client have
given informed consent, confirmed in writing, or:

(2) the lawyer who received the information took reasonable
measures to avoid exposure to more disqualifying information than was
reasonably necessary to determine whether to represent the prospective client;
and

(i) the disqualified lawyer is timely screened from any
participation in the matter and is apportioned no part of the fee therefrom;
and

(ii) written notice is promptly given to the prospective
client.

Comment

[1] Prospective clients, like clients, may
disclose information to a lawyer, place documents or other property in the
lawyer's custody, or rely on the lawyer's advice. A lawyer's discussions with a
prospective client usually are limited in time and depth and leave both the
prospective client and the lawyer free (and sometimes required) to proceed no
further. Hence, prospective clients should receive some but not all of the
protection afforded clients.

[2] Not all persons who communicate information
to a lawyer are entitled to protection under this Rule. A person who communicates
information unilaterally to a lawyer, without any reasonable expectation that
the lawyer is willing to discuss the possibility of forming a client-lawyer
relationship, is not a “prospective client” within the meaning of paragraph
(a).

[3] It is often necessary for a prospective
client to reveal information to the lawyer during an initial consultation prior
to the decision about formation of a client-lawyer relationship. The lawyer
often must learn such information to determine whether there is a conflict of
interest with an existing client and whether the matter is one that the lawyer
is willing to undertake. Paragraph (b) prohibits the lawyer from using or
revealing that information, except as permitted by Rule 1.9, even if the client
or lawyer decides not to proceed with the representation. The duty exists
regardless of how brief the initial conference may be.

[4] In order to avoid acquiring disqualifying
information from a prospective client, a lawyer considering whether or not to
undertake a new matter should limit the initial interview to only such
information as reasonably appears necessary for that purpose. Where the
information indicates that a conflict of interest or other reason for
non-representation exists, the lawyer should so inform the prospective client
or decline the representation. If the prospective client wishes to retain the
lawyer, and if consent is possible under Rule 1.7, then consent from all
affected present or former clients must be obtained before accepting the representation.

[5] A lawyer may condition conversations with a
prospective client on the person's informed consent that no information
disclosed during the consultation will prohibit the lawyer from representing a
different client in the matter. See Rule 1.0(e) for the definition of informed
consent.

[6] Even in the absence of an agreement, under
paragraph (c), the lawyer is not prohibited from representing a client with
interests adverse to those of the prospective client in the same or a
substantially related matter unless the lawyer has received from the
prospective client information that could be significantly harmful if used in
the matter.

[7] Under paragraph (c), the prohibition in
this Rule is imputed to other lawyers as provided in Rule 1.10, but, under
paragraph (d)(1), imputation may be avoided if the lawyer obtains the informed
consent, confirmed in writing, of both the prospective and affected clients. In
the alternative, imputation may be avoided if the conditions of paragraph
(d)(2) are met and all disqualified lawyers are timely screened and written
notice is promptly given to the prospective client. See Rule 1.0(k)
(requirements for screening procedures). Paragraph (d)(2)(i) does not prohibit
the screened lawyer from receiving a salary or partnership share established by
prior independent agreement, but that lawyer may not receive compensation
directly related to the matter in which the lawyer is disqualified.

[8] Notice, including a general description of
the subject matter about which the lawyer was consulted, and of the screening
procedures employed, generally should be given as soon as practicable after the
need for screening becomes apparent.

[9] For the duty of competence of a lawyer who
gives assistance on the merits of a matter to a prospective client, see Rule
1.1. For a lawyer's duties when a prospective client entrusts valuables or
papers to the lawyer's care, see Rule 1.15.

[10] Paragraph (d) also applies to other lawyers
in the firm with whom the receiving lawyer actually shared disqualifying
information.

In representing a client, a lawyer shall exercise
independent professional judgment and render candid advice. In rendering
advice, a lawyer may refer not only to law but to other considerations such as
moral, economic, social and political factors, that may be relevant to the
client's situation.

Comment

Scope of Advice

[1] A client is entitled to straightforward
advice expressing the lawyer's honest assessment. Legal advice often involves
unpleasant facts and alternatives that a client may be disinclined to confront.
In presenting advice, a lawyer endeavors to sustain the client's morale and may
put advice in as acceptable a form as honesty permits. However, a lawyer should
not be deterred from giving candid advice by the prospect that the advice will
be unpalatable to the client.

[2] Advice couched in narrow legal terms may be
of little value to a client, especially where practical considerations, such as
cost or effects on other people, are predominant. Purely technical legal
advice, therefore, can sometimes be inadequate. It is proper for a lawyer to
refer to relevant moral and ethical considerations in giving advice. Although a
lawyer is not a moral advisor as such, moral and ethical considerations impinge
upon most legal questions and may decisively influence how the law will be
applied.

[3] A client may expressly or impliedly ask the
lawyer for purely technical advice. When such a request is made by a client
experienced in legal matters, the lawyer may accept it at face value. When such
a request is made by a client inexperienced in legal matters, however, the
lawyer's responsibility as advisor may include indicating that more may be
involved than strictly legal considerations.

[4] Matters that go beyond strictly legal
questions may also be in the domain of another profession. Family matters can
involve problems within the professional competence of psychiatry, clinical
psychology or social work; business matters can involve problems within the
competence of the accounting profession or of financial specialists. Where
consultation with a professional in another field is itself something a
competent lawyer would recommend, the lawyer should make such a recommendation.
At the same time, a lawyer's advice at its best often consists of recommending
a course of action in the face of conflicting recommendations of experts.

Offering Advice

[5] In general, a lawyer is not expected to
give advice until asked by the client. However, when a lawyer knows that a
client proposes a course of action that is likely to result in substantial
adverse legal consequences to the client, the lawyer's duty to the client under
Rule 1.4 may require that the lawyer offer advice if the client's course of
action is related to the representation. Similarly, when a matter is likely to
involve litigation, it may be necessary under Rule 1.4 to inform the client of
forms of dispute resolution that might constitute reasonable alternatives to
litigation. A lawyer ordinarily has no duty to initiate investigation of a
client's affairs or to give advice that the client has indicated is unwanted,
but a lawyer may initiate advice to a client when doing so appears to be in the
client's interest.

(1) the lawyer consults with each client concerning the
implications of the common representation, including the advantages and risks
involved, and the effect on the attorney-client privileges, and obtains each
client's consent to the common representation;

(2) the lawyer reasonably believes that the matter can be
resolved on terms compatible with the clients' best interests, that each client
will be able to make adequately informed decisions in the matter and that there
is little risk of material prejudice to the interests of any of the clients if
the contemplated resolution is unsuccessful; and

(3) the lawyer reasonably believes that the common
representation can be undertaken impartially and without improper effect on
other responsibilities the lawyer has to any of the clients.

(b) While acting as intermediary, the lawyer shall consult
with each client concerning the decisions to be made and the considerations
relevant in making them, so that each client can make adequately informed decisions.

(c) A lawyer shall withdraw as intermediary if any of the
clients so requests, or if any of the conditions stated in paragraph (a) is no
longer satisfied. Upon withdrawal, the lawyer shall not continue to represent
any of the clients in the matter that was the subject of the intermediation.

Comment

[1] A lawyer acts as intermediary under this
rule when the lawyer represents two or more parties with potentially
conflicting interests. A key factor in defining the relationship is whether the
parties share responsibility for the lawyer's fee, but the common
representation may be inferred from other circumstances. Because confusion can
arise as to the lawyer's role where each party is not separately represented,
it is important that the lawyer make clear the relationship.

[2] The Rule does not apply to a lawyer acting
as arbitrator or mediator between or among parties who are not clients of the
lawyer, even where the lawyer has been appointed with the concurrence of the
parties. In performing such a role the lawyer may be subject to applicable
codes of ethics, such as the Code of Ethics for Arbitration in Commercial
Disputes prepared by a joint Committee of the American Bar Association and the
American Arbitration Association.

[3] A lawyer acts as intermediary in seeking to
establish or adjust a relationship between clients on an amicable and mutually
advantageous basis; for example, in helping to organize a business in which two
or more clients are entrepreneurs, working out the financial reorganization of
an enterprise in which two or more clients have an interest, arranging a
property distribution in settlement of an estate or mediating a dispute between
clients. The lawyer seeks to resolve potentially conflicting interests by
developing the parties' mutual interests. The alternative can be that each
party may have to obtain separate representation, with the possibility in some
situations of incurring additional cost, complication or even litigation. Given
these and other relevant factors, all the clients may prefer that the lawyer
act as intermediary.

[4] In considering whether to act as
intermediary between clients, a lawyer should be mindful that if the
intermediation fails the result can be additional cost, embarrassment and
recrimination. In some situations the risk of failure is so great that
intermediation is plainly impossible. For example, a lawyer cannot undertake
common representation of clients between whom contentious litigation is
imminent or who contemplate contentious negotiations. More generally, if the
relationship between the parties has already assumed definite antagonism, the
possibility that the clients' interests can be adjusted by intermediation
ordinarily is not very good.

[5] The appropriateness of intermediation can
depend on its form. Forms of intermediation range from informal arbitration,
where each client's case is presented by the respective client and the lawyer
decides the outcome, to mediation, to common representation where the clients'
interests are substantially though not entirely compatible. One form may be
appropriate in circumstances where another would not. Other relevant factors
are whether the lawyer subsequently will represent both parties on a continuing
basis and whether the situation involves creating a relationship between the
parties or terminating one.

Confidentiality and Privilege

[6] A particularly important factor in
determining the appropriateness of intermediation is the effect on
client-lawyer confidentiality and the attorney-client privilege. In a common
representation, the lawyer is still required both to keep each client
adequately informed and to maintain confidentiality of information relating to
the representation. See Rules 1.4 and 1.6. Complying with both requirements
while acting as intermediary requires a delicate balance. If the balance cannot
be maintained, the common representation is improper. With regard to the
attorney-client privilege, the prevailing rule is that as between commonly
represented clients the privilege does not attach. Hence, it must be assumed
that if litigation eventuates between the clients, the privilege will not
protect any such communications, and the clients should be so advised.

[7] Since the lawyer is required to be
impartial between commonly represented clients, intermediation is improper when
that impartiality cannot be maintained. For example, a lawyer who has
represented one of the clients for a long period and in a variety of matters
might have difficulty being impartial between that client and one to whom the
lawyer has only recently been introduced.

Consultation

[8] In acting as intermediary between clients,
the lawyer is required to consult with the clients on the implications of doing
so, and proceed only upon consent based on such a consultation. The consultation
should make clear that the lawyer's role is not that of partisanship normally
expected in other circumstances.

[9] Paragraph (b) is an application of the
principle expressed in Rule 1.4. Where the lawyer is intermediary, the clients
ordinarily must assume greater responsibility for decisions than when each
client is independently represented.

Withdrawal

[10] Common representation does not diminish the
rights of each client in the client-lawyer relationship. Each has the right to
loyal and diligent representation, the right to discharge the lawyer as stated
in Rule 1.16, and the protection of Rule 1.9 concerning obligations to a former
client.

(a) A lawyer may provide an evaluation of a matter affecting
a client for the use of someone other than the client if the lawyer reasonably
believes that making the evaluation is compatible with other aspects of the
lawyer's relationship with the client.

(b) When the lawyer knows or reasonably should know that the
evaluation is likely to affect the client's interests materially and adversely,
the lawyer shall not provide the evaluation unless the client gives informed
consent.

(c) Except as disclosure is authorized in connection with a
report of an evaluation, information relating to the evaluation is otherwise
protected by Rule 1.6.

Comment

Definition

[1] An evaluation may be performed at the
client's direction or when impliedly authorized in order to carry out the
representation. See Rule 1.2. Such an evaluation may be for the primary purpose
of establishing information for the benefit of third parties; for example, an
opinion concerning the title of property rendered at the behest of a vendor for
the information of a prospective purchaser, or at the behest of a borrower for
the information of a prospective lender. In some situations, the evaluation may
be required by a government agency; for example, an opinion concerning the
legality of the securities registered for sale under the securities laws. In
other instances, the evaluation may be required by a third person, such as a
purchaser of a business.

[2] A legal evaluation should be distinguished
from an investigation of a person with whom the lawyer does not have a
client-lawyer relationship. For example, a lawyer retained by a purchaser to
analyze a vendor's title to property does not have a client-lawyer relationship
with the vendor. So also, an investigation into a person's affairs by a
government lawyer, or by special counsel by a government lawyer, or by special
counsel employed by the government, is not an evaluation as that term is used
in this Rule. The question is whether the lawyer is retained by the person
whose affairs are being examined. When the lawyer is retained by that person,
the general rules concerning loyalty to client and preservation of confidences
apply, which is not the case if the lawyer is retained by someone else. For
this reason, it is essential to identify the person by whom the lawyer is
retained. This should be made clear not only to the person under examination,
but also to others to whom the results are to be made available.

Duties Owed to Third Person and Client

[3] When the evaluation is intended for the
information or use of a third person, a legal duty to that person may or may
not arise. That legal question is beyond the scope of this Rule. However, since
such an evaluation involves a departure from the normal client-lawyer
relationship, careful analysis of the situation is required. The lawyer must be
satisfied as a matter of professional judgment that making the evaluation is
compatible with other functions undertaken in behalf of the client. For
example, if the lawyer is acting as advocate in defending the client against
charges of fraud, it would normally be incompatible with that responsibility
for the lawyer to perform an evaluation for others concerning the same or a
related transaction. Assuming no such impediment is apparent, however, the
lawyer should advise the client of the implications of the evaluation, particularly
the lawyer's responsibilities to third persons and the duty to disseminate the
findings.

Access to and Disclosure of Information

[4] The quality of an evaluation depends on the
freedom and extent of the investigation upon which it is based. Ordinarily a
lawyer should have whatever latitude of investigation seems necessary as a
matter of professional judgment. Under some circumstances, however, the terms
of the evaluation may be limited. For example, certain issues or sources may be
categorically excluded, or the scope of search may be limited by time
constraints or the noncooperation of persons having relevant information. Any
such limitations that are material to the evaluation should be described in the
report. If after a lawyer has commenced an evaluation, the client refuses to
comply with the terms upon which it was understood the evaluation was to have
been made, the lawyer's obligations are determined by law, having reference to
the terms of the client's agreement and the surrounding circumstances. In no
circumstances is the lawyer permitted to knowingly make a false statement of
material fact or law in providing an evaluation under this Rule. See Rule 4.1.

Obtaining Client's Informed Consent

[5] Information relating to an evaluation is
protected by Rule 1.6. In many situations, providing an evaluation to a third
party poses no significant risk to the client; thus, the lawyer may be
impliedly authorized to disclose information to carry out the representation.
See Rule 1.6(a). Where, however, it is reasonably likely that providing the
evaluation will affect the client's interests materially and adversely, the
lawyer must first obtain the client's consent after the client has been
adequately informed concerning the important possible effects on the client's
interests. See Rules 1.6(a) and 1.0(e).

Financial Auditors' Requests for Information

[6] When a question concerning the legal
situation of a client arises at the instance of the client's financial auditor
and the question is referred to the lawyer, the lawyer's response may be made
in accordance with procedures recognized in the legal profession. Such a
procedure is set forth in the American Bar Association Statement of Policy
Regarding Lawyers' Responses to Auditors' Requests for Information, adopted in
1975.

(a) A lawyer serves as a third-party neutral when the lawyer
assists two or more persons who are not clients of the lawyer to reach a
resolution of a dispute or other matter that has arisen between them. Service
as a third-party neutral may include service as an arbitrator, a mediator or in
such other capacity as will enable the lawyer to assist the parties to resolve
the matter.

(b) A lawyer serving as a third-party neutral shall inform
unrepresented parties that the lawyer is not representing them. When the lawyer
knows or reasonably should know that a party does not understand the lawyer's
role in the matter, the lawyer shall explain the difference between the
lawyer's role as a third-party neutral and a lawyer's role as one who
represents a client.

Comment

[1] Alternative dispute resolution has become
a substantial part of the civil justice system. Aside from representing clients
in dispute-resolution processes, lawyers often serve as third-party neutrals. A
third-party neutral is a person, such as a mediator, arbitrator, conciliator or
evaluator, who assists the parties, represented or unrepresented, in the
resolution of a dispute or in the arrangement of a transaction. Whether a
third-party neutral serves primarily as a facilitator, evaluator or decision
maker depends on the particular process that is either selected by the parties
or mandated by a court.

[2] The role of a third-party neutral is not
unique to lawyers, although, in some court-connected contexts, only lawyers are
allowed to serve in this role or to handle certain types of cases. In
performing this role, the lawyer may be subject to court rules or other law
that apply either to third-party neutrals generally or to lawyers serving as
third-party neutrals. Lawyer-neutrals may also be subject to various codes of
ethics, such as the Code of Ethics for Arbitration in Commercial Disputes
prepared by a joint committee of the American Bar Association and the American
Arbitration Association or the Model Standards of Conduct for Mediators jointly
prepared by the American Bar Association, the American Arbitration Association
and the Society of Professionals in Dispute Resolution.

[3] Unlike nonlawyers who serve as third-party
neutrals, lawyers serving in this role may experience unique problems as a
result of differences between the role of a third-party neutral and a lawyer's
service as a client representative. The potential for confusion is significant
when the parties are unrepresented in the process. Thus, paragraph (b) requires
a lawyer-neutral to inform unrepresented parties that the lawyer is not
representing them. For some parties, particularly parties who frequently use
dispute-resolution processes, this information will be sufficient. For others,
particularly those who are using the process for the first time, more
information will be required. Where appropriate, the lawyer should inform
unrepresented parties of the important differences between the lawyer's role as
third-party neutral and a lawyer's role as a client representative, including
the inapplicability of the attorney-client evidentiary privilege. The extent of
disclosure required under this paragraph will depend on the particular parties
involved and the subject matter of the proceeding, as well as the particular
features of the dispute-resolution process selected.

[4] A lawyer who serves as a third-party
neutral subsequently may be asked to serve as a lawyer representing a client in
the same matter. The conflicts of interest that arise for both the individual
lawyer and the lawyer's law firm are addressed in Rule 1.12.

[5] Lawyers who represent clients in
alternative dispute-resolution processes are governed by the Rules of
Professional Conduct. When the dispute-resolution process takes place before a
tribunal, as in binding arbitration (see Rule 1.0(m)), the lawyer's duty of
candor is governed by Rule 3.3. Otherwise, the lawyer's duty of candor toward
both the third-party neutral and other parties is governed by Rule 4.1.

A lawyer shall not bring or defend a proceeding, or assert
or controvert an issue therein, unless there is a basis in law and fact for
doing so that is not frivolous, which includes a good faith argument for an extension,
modification or reversal of existing law. A lawyer for the defendant in a
criminal proceeding, or the respondent in a proceeding that could result in
incarceration, may nevertheless so defend the proceeding as to require that
every element of the case be established.

Comment

[1] The advocate has a duty not to abuse legal
procedure. The law, both procedural and substantive, establishes the limits
within which an advocate may proceed. However, the law is not always clear and
never is static. Accordingly, in determining the proper scope of advocacy,
account must be taken of the law's ambiguities and potential for change.

[2] The filing of an action or defense or
similar action taken for a client is not frivolous merely because the facts
have not first been fully substantiated or because the lawyer expects to
develop vital evidence only by discovery. What is required of lawyers, however,
is that they inform themselves about the facts of their clients' cases and the
applicable law and determine that they can make good faith arguments in support
of their clients' positions. Such action is not frivolous even though the
lawyer believes that the client's position ultimately will not prevail. The
action is frivolous, however, if the lawyer is unable either to make a good
faith argument on the merits of the action taken or to support the action taken
by a good faith argument for an extension, modification or reversal of existing
law.

[3] The lawyer's obligations under this Rule
are subordinate to federal or state constitutional law that entitles a
defendant in a criminal matter to the assistance of counsel in presenting a
claim or contention that otherwise would be prohibited by this Rule.

A lawyer shall make reasonable efforts to expedite
litigation consistent with the interests of the client.

Comment

[1] Dilatory practices bring the
administration of justice into disrepute. Although there will be occasions when
a lawyer may properly seek a postponement for personal reasons, it is not
proper for a lawyer to routinely fail to expedite litigation solely for the
convenience of the advocates. Nor will a failure to expedite be reasonable if
done for the purpose of frustrating an opposing party's attempt to obtain
rightful redress or repose. It is not a justification that similar conduct is
often tolerated by the bench and bar. The question is whether a competent
lawyer acting in good faith would regard the course of action as having some
substantial purpose other than delay. Realizing financial or other benefit from
otherwise improper delay in litigation is not a legitimate interest of the
client.

(1) make a false statement of fact or law to a tribunal or
fail to correct a false statement of material fact or law previously made to
the tribunal by the lawyer;

(2) fail to disclose to the tribunal legal authority in the
controlling jurisdiction known to the lawyer to be directly adverse to the
position of the client and not disclosed by opposing counsel; or

(3) offer evidence that the lawyer knows to be false. If a
lawyer, the lawyer's client, or a witness called by the lawyer, has offered
material evidence and the lawyer comes to know of its falsity, the lawyer shall
take reasonable remedial measures, including, if necessary, disclosure to the
tribunal. A lawyer may refuse to offer evidence, other than the testimony of a
defendant in a criminal matter, that the lawyer reasonably believes is false.

(b) A lawyer who represents a client in an adjudicative
proceeding and who knows that a person intends to engage, is engaging or has
engaged in criminal or fraudulent conduct related to the proceeding shall take
reasonable remedial measures, including, if necessary, disclosure to the
tribunal.

(c) The duties stated in paragraphs (a) and (b) continue to
the conclusion of the proceeding, and apply even if compliance requires
disclosure of information otherwise protected by Rule 1.6.

(d) In an ex parte proceeding, a lawyer shall inform the
tribunal of all material facts known to the lawyer which will enable the
tribunal to make an informed decision, whether or not the facts are adverse.

Comment

[1] This Rule governs the conduct of a lawyer
who is representing a client in the proceedings of a tribunal. See Rule 1.0(m)
for the definition of “tribunal.” It also applies when the lawyer is
representing a client in an ancillary proceeding conducted pursuant to the
tribunal's adjudicative authority, such as a deposition. Thus, for example,
paragraph (a)(3) requires a lawyer to take reasonable remedial measures if the
lawyer comes to know that a client who is testifying in a deposition has
offered evidence that is false.

[2] This Rule sets forth the special duties of
lawyers as officers of the court to avoid conduct that undermines the integrity
of the adjudicative process. A lawyer acting as an advocate in an adjudicative
proceeding has an obligation to present the client's case with persuasive
force. Performance of that duty while maintaining confidences of the client,
however, is qualified by the advocate's duty of candor to the tribunal.
Consequently, although a lawyer in an adversary proceeding is not required to
present an impartial exposition of the law or to vouch for the evidence submitted
in a cause, the lawyer must not allow the tribunal to be misled by false
statements of law or fact or evidence that the lawyer knows to be false.

Representations by a Lawyer

[3] An advocate is responsible for pleadings
and other documents prepared for litigation, but is usually not required to
have personal knowledge of matters asserted therein, for litigation documents
ordinarily present assertions by the client, or by someone on the client's
behalf, and not assertions by the lawyer. Compare Rule 3.1. However, an
assertion purporting to be on the lawyer's own knowledge, as in an affidavit by
the lawyer or in a statement in open court, may properly be made only when the
lawyer knows the assertion is true or believes it to be true on the basis of a
reasonably diligent inquiry. There are circumstances where failure to make a
disclosure is the equivalent of an affirmative misrepresentation. The
obligation prescribed in Rule 1.2(d) not to counsel a client to commit or
assist the client in committing a fraud applies in litigation. Regarding
compliance with Rule 1.2(d), see the Comment to that Rule. See also the Comment
to Rule 8.4(b).

Legal Argument

[4] Legal argument based on a knowingly false
representation of law constitutes dishonesty toward the tribunal. A lawyer is
not required to make a disinterested exposition of the law, but must recognize
the existence of pertinent legal authorities. Furthermore, as stated in
paragraph (a)(2), an advocate has a duty to disclose directly adverse authority
in the controlling jurisdiction that has not been disclosed by the opposing
party. The underlying concept is that legal argument is a discussion seeking to
determine the legal premises properly applicable to the case.

Offering Evidence

[5] Paragraph (a)(3) requires that the lawyer
refuse to offer evidence that the lawyer knows to be false, regardless of the
client's wishes. This duty is premised on the lawyer's obligation as an officer
of the court to prevent the trier of fact from being misled by false evidence.
A lawyer does not violate this Rule if the lawyer offers the evidence for the
purpose of establishing its falsity.

[6] If a lawyer knows that the client intends
to testify falsely or wants the lawyer to introduce false evidence, the lawyer
should seek to persuade the client that the evidence should not be offered. If
the persuasion is ineffective and the lawyer continues to represent the client,
the lawyer must refuse to offer the false evidence. If only a portion of a
witness's testimony will be false, the lawyer may call the witness to testify
but may not elicit or otherwise permit the witness to present the testimony
that the lawyer knows is false.

[7] The duties stated in paragraphs (a) and (b)
apply to all lawyers, including defense counsel in criminal cases. In some
jurisdictions, however, courts have required counsel to present the accused as
a witness or to give a narrative statement if the accused so desires, even if
counsel knows that the testimony or statement will be false. The obligation of
the advocate under the Rules of Professional Conduct is subordinate to such
requirements. See also Comment [9].

[8] The prohibition against offering false
evidence only applies if the lawyer knows that the evidence is false. A
lawyer's reasonable belief that evidence is false does not preclude its
presentation to the trier of fact. A lawyer's knowledge that evidence is false,
however, can be inferred from the circumstances. See Rule 1.0(f). Thus,
although a lawyer should resolve doubts about the veracity of testimony or
other evidence in favor of the client, the lawyer cannot ignore an obvious
falsehood.

[9] Although paragraph (a)(3) only prohibits a
lawyer from offering evidence the lawyer knows to be false, it permits the
lawyer to refuse to offer testimony or other proof that the lawyer reasonably
believes is false. Because of the special protections historically provided
criminal defendants, however, this Rule does not permit a lawyer to refuse to
offer the testimony of such a client where the lawyer reasonably believes but
does not know that the testimony will be false. Unless the lawyer knows the
testimony will be false, the lawyer must honor the client's decision to
testify. See also Comment [7].

Remedial Measures

[10] Having offered material evidence in the
belief that it was true, a lawyer may subsequently come to know that the
evidence is false. Or, a lawyer may be surprised when the lawyer's client, or
another witness called by the lawyer, offers testimony the lawyer knows to be
false, either during the lawyer's direct examination or in response to
cross-examination by the opposing lawyer. In such situations or if the lawyer
knows of the falsity of testimony elicited from the client during a deposition,
the lawyer must take reasonable remedial measures. In such situations, the
advocate's proper course is to remonstrate with the client confidentially,
advise the client of the lawyer's duty of candor to the tribunal and seek the
client's cooperation with respect to the withdrawal or correction of the false
statements or evidence. If that fails, the advocate must take further remedial
action. If withdrawal from the representation is not permitted or will not undo
the effect of the false evidence, the advocate must make such disclosure to the
tribunal as is reasonably necessary to remedy the situation, even if doing so
requires the lawyer to reveal information that otherwise would be protected by
Rule 1.6. It is for the tribunal then to determine what should be done --
making a statement about the matter to the trier of fact, ordering a mistrial
or perhaps nothing.

[11] The disclosure of a client's false
testimony can result in grave consequences to the client, including not only a
sense of betrayal but also loss of the case and perhaps a prosecution for
perjury. But the alternative is that the lawyer cooperate in deceiving the
court, thereby subverting the truth-finding process which the adversary system
is designed to implement. See Rule 1.2(d). Furthermore, unless it is clearly
understood that the lawyer will act upon the duty to disclose the existence of
false evidence, the client can simply reject the lawyer's advice to reveal the
false evidence and insist that the lawyer keep silent. Thus the client could in
effect coerce the lawyer into being a party to fraud on the court.

Preserving Integrity of Adjudicative Process

[12] Lawyers have a special obligation to protect
a tribunal against criminal or fraudulent conduct that undermines the integrity
of the adjudicative process, such as bribing, intimidating or otherwise
unlawfully communicating with a witness, juror, court official or other
participant in the proceeding, unlawfully destroying or concealing documents or
other evidence or failing to disclose information to the tribunal when required
by law to do so. Thus, paragraph (b) requires a lawyer to take reasonable
remedial measures, including disclosure if necessary, whenever the lawyer knows
that a person, including the lawyer's client, intends to engage, is engaging or
has engaged in criminal or fraudulent conduct related to the proceeding.

Duration of Obligation

[13] A practical time limit on the obligation to
rectify false evidence or false statements of law and fact has to be
established. The conclusion of the proceeding is a reasonably definite point
for the termination of the obligation. A proceeding has concluded within the
meaning of this Rule when a final judgment in the proceeding has been affirmed
on appeal or the time for review has passed.

Ex Parte Proceedings

[14] Ordinarily, an advocate has the limited
responsibility of presenting one side of the matters that a tribunal should
consider in reaching a decision; the conflicting position is expected to be
presented by the opposing party. However, in any ex parte proceeding, such as
an application for a temporary restraining order, there is no balance of
presentation by opposing advocates. The object of an ex parte proceeding is
nevertheless to yield a substantially just result. The judge has an affirmative
responsibility to accord the absent party just consideration. The lawyer for
the represented party has the correlative duty to make disclosures of material
facts known to the lawyer and that the lawyer reasonably believes are necessary
to an informed decision.

Withdrawal

[15] Normally, a lawyer's compliance with the
duty of candor imposed by this Rule does not require that the lawyer withdraw
from the representation of a client whose interests will be or have been
adversely affected by the lawyer's disclosure. The lawyer may, however, be
required by Rule 1.16(a) to seek permission of the tribunal to withdraw if the
lawyer's compliance with this Rule's duty of candor results in such an extreme
deterioration of the client-lawyer relationship that the lawyer can no longer
competently represent the client. Also see Rule 1.16(b) for the circumstances
in which a lawyer will be permitted to seek a tribunal's permission to
withdraw. In connection with a request for permission to withdraw that is
premised on a client's misconduct, a lawyer may reveal information relating to
the representation only to the extent reasonably necessary to comply with this
Rule or as otherwise permitted by Rule 1.6.

(a) unlawfully obstruct another party's access to evidence
or unlawfully alter, destroy or conceal a document or other material having
potential evidentiary value. A lawyer shall not counsel or assist another
person to do any such act;

(b) falsify evidence, counsel or assist a witness to testify
falsely, or offer an inducement to a witness that is prohibited by law;

(c) knowingly disobey an obligation under the rules of a
tribunal except for an open refusal based on an assertion that no valid
obligation exists;

(d) in pretrial procedure, make a frivolous discovery
request or fail to make reasonably diligent effort to comply with a legally
proper discovery request by an opposing party;

(e) in trial, allude to any matter that the lawyer does not
reasonably believe is relevant or that will not be supported by admissible
evidence, assert personal knowledge of facts in issue except when testifying as
a witness, or state a personal opinion as to the justness of a cause, the
credibility of a witness, the culpability of a civil litigant or the guilt or
innocence of an accused; or

(f) request a person other than a client to refrain from
voluntarily giving relevant information to another party unless:

(1) the person is a relative or an employee or other agent
of a client; and

(2) the lawyer reasonably believes that the person's
interests will not be adversely affected by refraining from giving such
information.

Comment

[1] The procedure of the adversary system
contemplates that the evidence in a case is to be marshaled competitively by
the contending parties. Fair competition in the adversary system is secured by
prohibitions against destruction or concealment of evidence, improperly
influencing witnesses, obstructive tactics in discovery procedure, and the
like.

[2] Documents and other items of evidence are
often essential to establish a claim or defense. Subject to evidentiary
privileges, the right of an opposing party, including the government, to obtain
evidence through discovery or subpoena is an important procedural right. The
exercise of that right can be frustrated if relevant material is altered,
concealed or destroyed. Applicable law in many jurisdictions makes it an
offense to destroy material for purpose of impairing its availability in a
pending proceeding or one whose commencement can be foreseen. Falsifying
evidence is also generally a criminal offense. Paragraph (a) applies to
evidentiary material generally, including computerized information. Applicable
law may permit a lawyer to take temporary possession of physical evidence of
client crimes for the purpose of conducting a limited examination that will not
alter its potential evidentiary value. In such a case, applicable law may
require the lawyer to turn the evidence over to the police or prosecuting
authority, depending on the circumstances.

[3] With regard to paragraph (b), it is not
improper to pay a witness's expenses or to compensate an expert witness on
terms permitted by law. The common law rule in most jurisdictions is that it is
improper to pay an occurrence witness any fee for testifying and that it is
improper to pay an expert witness a contingent fee.

[4] Paragraph (f) permits a lawyer to advise
employees of a client to refrain from giving information to another party, for
the employees may identify their interests with those of the client. See also
Rule 4.2.

[1] Many forms of improper influence upon a
tribunal are proscribed by criminal law. Others are specified in the ABA Model
Code of Judicial Conduct, with which an advocate should be familiar. A lawyer
is required to avoid contributing to a violation of such provisions.

[2] During a proceeding a lawyer may not
communicate ex parte with persons serving in an official capacity in the
proceeding, such as judges, masters or jurors, unless authorized to do so by
law or court order.

[3] A lawyer may on occasion want to
communicate with a juror or prospective juror after the jury has been discharged.
The lawyer may do so unless the communication is prohibited by law or a court
order but must respect the desire of the juror not to talk with the lawyer. The
lawyer may not engage in improper conduct during the communication.

[4] The advocate's function is to present
evidence and argument so that the cause may be decided according to law.
Refraining from abusive or obstreperous conduct is a corollary of the
advocate's right to speak on behalf of litigants. A lawyer may stand firm
against abuse by a judge but should avoid reciprocation; the judge's default is
no justification for similar dereliction by an advocate. An advocate can
present the cause, protect the record for subsequent review and preserve
professional integrity by patient firmness no less effectively than by
belligerence or theatrics.

[5] The duty to refrain from disruptive conduct
applies to any proceeding of a tribunal, including a deposition. See Rule
1.0(m).

(a) A lawyer who is participating or has participated in the
investigation or litigation of a matter shall not make an extrajudicial
statement that the lawyer knows or reasonably should know will be disseminated
by means of public communication and will have a substantial likelihood of
materially prejudicing an adjudicative proceeding in the matter.

(b) Notwithstanding paragraph (a), a lawyer may state:

(1) the claim, offense or defense involved and, except when
prohibited by law, the identity of the persons involved;

(2) information contained in a public record;

(3) that an investigation of a matter is in progress;

(4) the scheduling or result of any step in litigation;

(5) a request for assistance in obtaining evidence and
information necessary thereto;

(6) a warning of danger concerning the behavior of a person
involved, when there is reason to believe that there exists the likelihood of
substantial harm to an individual or to the public interest; and

(7) in a criminal case, in addition to subparagraphs (1)
through (6):

(i) the identity, residence, occupation and family status
of the accused;

(ii) if the accused has not been
apprehended, information necessary to aid in apprehension of that person;

(iii) the fact, time and place of arrest; and

(iv) the identity of investigating and arresting officers or agencies
and the length of the investigation.

(c) Notwithstanding paragraph (a), a lawyer may make a
statement that a reasonable lawyer would believe is required to protect a
client from the substantial undue prejudicial effect of recent publicity not
initiated by the lawyer or the lawyer's client. A statement made pursuant to
this paragraph shall be limited to such information as is necessary to mitigate
the recent adverse publicity.

(d) A statement referred to in paragraph (a) will be
rebuttably presumed to have a substantial likelihood of materially prejudicing
an adjudicative proceeding when it refers to that proceeding and the statement
is related to:

(1) the character, credibility, reputation or criminal
record of a party, suspect in a criminal investigation or witness, or the
identity of a witness, or the expected testimony of a party or witness;

(2) in a criminal case or proceeding that could result in
incarceration, the possibility of a plea of guilty to the offense or the
existence or contents of any confession, admission, or statement given by a
defendant or suspect or that person's refusal or failure to make a statement;

(3) the performance or results of any examination or test or
the refusal or failure of a person to submit to an examination or test, or the
identity or nature of physical evidence expected to be presented;

(4) any opinion as to the guilt or innocence of a defendant
or suspect in a criminal case or proceeding that could result in incarceration;

(5) information that the lawyer knows or reasonably should
know is likely to be inadmissible as evidence in a trial and would if disclosed
create a substantial risk of prejudicing an impartial trial; or

(6) the fact that a defendant has been charged with a crime,
unless there is included therein a statement explaining that the charge is
merely an accusation and that the defendant is presumed innocent until and
unless proven guilty.

(e) No lawyer associated in a firm or government agency with
a lawyer subject to paragraph (a) shall make a statement prohibited by
paragraph (a).

Comment

[1] It is difficult to strike a balance
between protecting the right to a fair trial and safeguarding the right of free
expression. Preserving the right to a fair trial necessarily entails some
curtailment of the information that may be disseminated about a party prior to
trial, particularly where trial by jury is involved. If there were no such
limits, the result would be the practical nullification of the protective
effect of the rules of forensic decorum and the exclusionary rules of evidence.
On the other hand, there are vital social interests served by the free
dissemination of information about events having legal consequences and about
legal proceedings themselves. The public has a right to know about threats to
its safety and measures aimed at assuring its security. It also has a
legitimate interest in the conduct of judicial proceedings, particularly in
matters of general public concern. Furthermore, the subject matter of legal
proceedings is often of direct significance in debate and deliberation over
questions of public policy.

[2] Special rules of confidentiality may
validly govern proceedings in juvenile, domestic relations and mental
disability proceedings, and perhaps other types of litigation. Rule 3.4(c)
requires compliance with such rules.

[3] The Rule sets forth a basic general
prohibition against a lawyer's making statements that the lawyer knows or
should know will have a substantial likelihood of materially prejudicing an
adjudicative proceeding. Recognizing that the public value of informed
commentary is great and the likelihood of prejudice to a proceeding by the
commentary of a lawyer who is not involved in the proceeding is small, the rule
applies only to lawyers who are, or who have been involved in the investigation
or litigation of a case, and their associates.

[4] Paragraph (b) identifies specific matters
about which a lawyer's statements would not ordinarily be considered to present
a substantial likelihood of material prejudice, and should not in any event be
considered prohibited by the general prohibition of paragraph (a). Paragraph
(b) is not intended to be an exhaustive listing of the subjects upon which a
lawyer may make a statement, but statements on other matters may be subject to
paragraph (a).

[5] Another relevant factor in determining
prejudice is the nature of the proceeding involved. Criminal jury trials will
be most sensitive to extrajudicial speech. Civil trials may be less sensitive.
Non-jury hearings and arbitration proceedings may be even less affected. The
Rule will still place limitations on prejudicial comments in these cases, but
the likelihood of prejudice may be different depending on the type of
proceeding.

[6] See Rule 3.8(f) for additional duties of
prosecutors in connection with extrajudicial statements about criminal
proceedings.

[7] Finally, extrajudicial statements that
might otherwise raise a question under this Rule may be permissible when they
are made in response to statements made publicly by another party, another
party's lawyer, or third persons, where a reasonable lawyer would believe a
public response is required in order to avoid prejudice to the lawyer's client.
When prejudicial statements have been publicly made by others, responsive
statements may have the salutary effect of lessening any resulting adverse
impact on the adjudicative proceeding. Such responsive statements should be
limited to contain only such information as is necessary to mitigate undue
prejudice created by the statements made by others.

(a) A lawyer shall not act as advocate at a trial in which
the lawyer is likely to be a necessary witness unless:

(1) the testimony relates to an uncontested issue;

(2) the testimony relates to the nature and value of legal
services rendered in the case; or

(3) disqualification of the lawyer would work substantial
hardship on the client.

(b) A lawyer may act as advocate in a trial in which another
lawyer in the lawyer's firm is likely to be called as a witness unless
precluded from doing so by Rule 1.7 or Rule 1.9.

Comment

[1] Combining the roles of advocate and
witness can prejudice the tribunal and the opposing party and can also involve
a conflict of interest between the lawyer and client.

Advocate-Witness Rule

[2] The tribunal has proper objection when the
trier of fact may be confused or misled by a lawyer serving as both advocate
and witness. The opposing party has proper objection where the combination of
roles may prejudice that party's rights in the litigation. A witness is
required to testify on the basis of personal knowledge, while an advocate is
expected to explain and comment on evidence given by others. It may not be
clear whether a statement by an advocate-witness should be taken as proof or as
an analysis of the proof.

[3] To protect the tribunal, paragraph (a)
prohibits a lawyer from simultaneously serving as advocate and necessary
witness except in those circumstances specified in paragraphs (a)(1) through
(a)(3). Paragraph (a)(1) recognizes that if the testimony will be uncontested,
the ambiguities in the dual role are purely theoretical. Paragraph (a)(2)
recognizes that where the testimony concerns the extent and value of legal
services rendered in the action in which the testimony is offered, permitting
the lawyers to testify avoids the need for a second trial with new counsel to
resolve that issue. Moreover, in such a situation the judge has firsthand
knowledge of the matter in issue; hence, there is less dependence on the
adversary process to test the credibility of the testimony.

[4] Apart from these two exceptions, paragraph
(a)(3) recognizes that a balancing is required between the interests of the
client and those of the tribunal and the opposing party. Whether the tribunal
is likely to be misled or the opposing party is likely to suffer prejudice
depends on the nature of the case, the importance and probable tenor of the
lawyer's testimony, and the probability that the lawyer's testimony will
conflict with that of other witnesses. Even if there is risk of such prejudice,
in determining whether the lawyer should be disqualified, due regard must be
given to the effect of disqualification on the lawyer's client. It is relevant
that one or both parties could reasonably foresee that the lawyer would
probably be a witness. The conflict of interest principles stated in Rules 1.7,
1.9 and 1.10 have no application to this aspect of the problem.

[5] Because the tribunal is not likely to be
misled when a lawyer acts as advocate in a trial in which another lawyer in the
lawyer's firm will testify as a necessary witness, paragraph (b) permits the
lawyer to do so except in situations involving a conflict of interest.

Conflict of Interest

[6] In determining if it is permissible to act
as advocate in a trial in which the lawyer will be a necessary witness, the
lawyer must also consider that the dual role may give rise to a conflict of
interest that will require compliance with Rules 1.7 or 1.9. For example, if
there is likely to be substantial conflict between the testimony of the client
and that of the lawyer the representation involves a conflict of interest that
requires compliance with Rule 1.7. This would be true even though the lawyer
might not be prohibited by paragraph (a) from simultaneously serving as
advocate and witness because the lawyer's disqualification would work a
substantial hardship on the client. Similarly, a lawyer who might be permitted
to simultaneously serve as an advocate and a witness by paragraph (a)(3) might
be precluded from doing so by Rule 1.9. The problem can arise whether the
lawyer is called as a witness on behalf of the client or is called by the
opposing party. Determining whether or not such a conflict exists is primarily
the responsibility of the lawyer involved. If there is a conflict of interest,
the lawyer must secure the client's informed consent, confirmed in writing. In
some cases, the lawyer will be precluded from seeking the client's consent. See
Rule 1.7. See Rule 1.0(b) for the definition of “confirmed in writing” and Rule
1.0(e) for the definition of “informed consent.”

[7] Paragraph (b) provides that a lawyer is not
disqualified from serving as an advocate because a lawyer with whom the lawyer
is associated in a firm is precluded from doing so by paragraph (a). If,
however, the testifying lawyer would also be disqualified by Rule 1.7 or Rule
1.9 from representing the client in the matter, other lawyers in the firm will
be precluded from representing the client by Rule 1.10 unless the client gives
informed consent under the conditions stated in Rule 1.7.

(a) refrain from prosecuting a charge that the prosecutor
knows is not supported by probable cause;

(b) make reasonable efforts to assure that the accused has
been advised of the right to, and the procedure for obtaining, counsel and has
been given reasonable opportunity to obtain counsel;

(c) not seek to obtain from an unrepresented accused a
waiver of important pretrial rights, such as the right to a preliminary
hearing;

(d) make timely disclosure to the defense of all evidence or
information known to the prosecutor that tends to negate the guilt of the
accused or mitigates the offense, and, in connection with sentencing, disclose
to the defense and to the tribunal all unprivileged mitigating information
known to the prosecutor, except when the prosecutor is relieved of this
responsibility by a protective order of the tribunal;

(e) not subpoena a lawyer in a grand jury or other criminal
proceeding to present evidence about a past or present client unless the
prosecutor reasonably believes:

(1) the information sought is not protected from disclosure
by any applicable privilege;

(2) the evidence sought is essential to the successful
completion of an ongoing investigation or prosecution; and

(3) there is no other feasible alternative to obtain the
information;

(f) except for statements that are necessary to inform the
public of the nature and extent of the prosecutor's action and that serve a
legitimate law enforcement purpose, refrain from making extrajudicial comments
that have a substantial likelihood of heightening public condemnation of the
accused and exercise reasonable care to prevent investigators, law enforcement
personnel, employees or other persons assisting or associated with the
prosecutor in a criminal case from making an extrajudicial statement that the
prosecutor would be prohibited from making under Rule 3.6 or this Rule.

Comment

[1] A prosecutor has the responsibility of a
minister of justice and not simply that of an advocate. This responsibility
carries with it specific obligations to see that the defendant is accorded
procedural justice and that guilt is decided upon the basis of sufficient
evidence. Applicable law may require other measures by the prosecutor and
knowing disregard of those obligations or a systematic abuse of prosecutorial
discretion could constitute a violation of Rule 8.4.

[2] In some jurisdictions, a defendant may
waive a preliminary hearing and thereby lose a valuable opportunity to
challenge probable cause. Accordingly, prosecutors should not seek to obtain
waivers of preliminary hearings or other important pretrial rights from
unrepresented accused persons. Paragraph (c) does not apply, however, to an
accused appearing pro se with the approval of the tribunal. Nor does it forbid
the lawful questioning of an uncharged suspect who has knowingly waived the
rights to counsel and silence.

[3] The exception in paragraph (d) recognizes that
a prosecutor may seek an appropriate protective order from the tribunal if
disclosure of information to the defense could result in substantial harm to an
individual or to the public interest.

[4] Paragraph (e) is intended to limit the
issuance of lawyer subpoenas in grand jury and other criminal proceedings to
those situations in which there is a genuine need to intrude into the
client-lawyer relationship.

[5] Paragraph (f) supplements Rule 3.6, which
prohibits extrajudicial statements that have a substantial likelihood of
prejudicing an adjudicatory proceeding. In the context of a criminal
prosecution, a prosecutor's extrajudicial statement can create the additional
problem of increasing public condemnation of the accused. Although the
announcement of an indictment, for example, will necessarily have severe
consequences for the accused, a prosecutor can, and should, avoid comments
which have no legitimate law enforcement purpose and have a substantial
likelihood of increasing public opprobrium of the accused. Nothing in this
Comment is intended to restrict the statements which a prosecutor may make
which comply with Rule 3.6(b), 3.6(c) or 3.6(d).

[6] Like other lawyers, prosecutors are subject
to Rules 5.1 and 5.3, which relate to responsibilities regarding lawyers and
nonlawyers who work for or are associated with the lawyer's office. Paragraph
(f) reminds the prosecutor of the importance of these obligations in connection
with the unique dangers of improper extrajudicial statements in a criminal case.
In addition, paragraph (f) requires a prosecutor to exercise reasonable care to
prevent persons assisting or associated with the prosecutor from making
improper extrajudicial statements, even when such persons are not under the
direct supervision of the prosecutor. Ordinarily, the reasonable care standard
will be satisfied if the prosecutor issues the appropriate cautions to
law-enforcement personnel and other relevant individuals.

A lawyer representing a client before a legislative body or
administrative agency in a nonadjudicative proceeding shall disclose that the
appearance is in a representative capacity and shall conform to the provisions
of Rules 3.3(a) through (c), 3.4(a) through (c), and 3.5.

Comment

[1] In representation before bodies such as
legislatures, municipal councils, and executive and administrative agencies
acting in a rule-making or policy-making capacity, lawyers present facts,
formulate issues and advance argument in the matters under consideration. The
decision-making body, like a court, should be able to rely on the integrity of
the submissions made to it. A lawyer appearing before such a body must deal
with it honestly and in conformity with applicable rules of procedure. See Rules
3.3(a) through (c), 3.4(a) through (c) and 3.5.

[2] Lawyers have no exclusive right to appear
before nonadjudicative bodies, as they do before a court. The requirements of
this Rule therefore may subject lawyers to regulations inapplicable to
advocates who are not lawyers. However, legislatures and administrative
agencies have a right to expect lawyers to deal with them as they deal with
courts.

[3] This Rule only applies when a lawyer
represents a client in connection with an official hearing or meeting of a
governmental agency or a legislative body to which the lawyer or the lawyer's
client is presenting evidence or argument. It does not apply to representation
of a client in a negotiation or other bilateral transaction with a governmental
agency or in connection with an application for a license or other privilege or
the client's compliance with generally applicable reporting requirements, such
as the filing of income-tax returns. Nor does it apply to the representation of
a client in connection with an investigation or examination of the client's
affairs conducted by government investigators or examiners. Representation in
such matters is governed by Rules 4.1 through 4.4.

(a) make a false statement of material fact or law to a
third person; or

(b) fail to disclose a material fact to a third person when
disclosure is necessary to avoid assisting a criminal or fraudulent act by a
client, unless disclosure is prohibited by Rule 1.6.

Comment

Misrepresentation

[1] A lawyer is required to be truthful when
dealing with others on a client's behalf, but generally has no affirmative duty
to inform an opposing party of relevant facts. A misrepresentation can occur if
the lawyer incorporates or affirms a statement of another person that the
lawyer knows is false. Misrepresentations can also occur by partially true but
misleading statements or omissions that are the equivalent of affirmative false
statements. For dishonest conduct that does not amount to a false statement or
for misrepresentations by a lawyer other than in the course of representing a
client, see Rule 8.4.

Statements of Fact

[2] This Rule refers to statements of fact.
Whether a particular statement should be regarded as one of fact can depend on
the circumstances. Under generally accepted conventions in negotiation, certain
types of statements ordinarily are not taken as statements of material fact.
Estimates of price or value placed on the subject of a transaction and a
party's intentions as to an acceptable settlement of a claim are ordinarily in
this category, and so is the existence of an undisclosed principal except where
nondisclosure of the principal would constitute fraud. Lawyers should be
mindful of their obligations under applicable law to avoid criminal and
tortious misrepresentation.

Crime or Fraud by Client

[3] Under Rule 1.2(d), a lawyer is prohibited
from counseling or assisting a client in conduct that the lawyer knows is
criminal or fraudulent. Paragraph (b) states a specific application of the
principle set forth in Rule 1.2(d) and addresses the situation where a client's
crime or fraud takes the form of a lie or misrepresentation. Ordinarily, a
lawyer can avoid assisting a client's crime or fraud by withdrawing from the
representation. Sometimes it may be necessary for the lawyer to give notice of
the fact of withdrawal and to disaffirm an opinion, document, affirmation or
the like. In extreme cases, substantive law may require a lawyer to disclose
information relating to the representation to avoid being deemed to have
assisted the client's crime or fraud. If the lawyer can avoid assisting a
client's crime or fraud only by disclosing this information, then under paragraph
(b) the lawyer is required to do so, unless the disclosure is prohibited by
Rule 1.6.

In representing a client, a lawyer shall not communicate
about the subject of the representation with a person the lawyer knows to be
represented by another lawyer in the matter, unless the lawyer has the consent
of the other lawyer or is authorized by law or a court order.

Comment

[1] This Rule contributes to the proper
functioning of the legal system by protecting a person who has chosen to be
represented by a lawyer in a matter against possible overreaching by other
lawyers who are participating in the matter, interference by those lawyers with
the client-lawyer relationship and the uncounseled disclosure of information
relating to the representation.

[2] This Rule applies to communications with
any person who is represented by counsel concerning the matter to which the
communication relates.

[3] The Rule applies even though the
represented person initiates or consents to the communication. A lawyer must
immediately terminate communication with a person if, after commencing
communication, the lawyer learns that the person is one with whom communication
is not permitted by this Rule.

[4] This Rule does not prohibit communication
with a represented person, or an employee or agent of such a person, concerning
matters outside the representation. For example, the existence of a controversy
between a government agency and a private party, or between two organizations,
does not prohibit a lawyer for either from communicating with nonlawyer
representatives of the other regarding a separate matter. Nor does this Rule
preclude communication with a represented person who is seeking advice from a
lawyer who is not otherwise representing a client in the matter. A lawyer may
not make a communication prohibited by this Rule through the acts of another.
See Rule 8.4(a). Parties to a matter may communicate directly with each other,
and a lawyer is not prohibited from advising a client concerning a
communication that the client is legally entitled to make. Also, a lawyer
having independent justification or legal authorization for communicating with
a represented person is permitted to do so.

[5] Communications authorized by law may
include communications by a lawyer on behalf of a client who is exercising a
constitutional or other legal right to communicate with the government.
Communications authorized by law may also include investigative activities of
lawyers representing governmental entities, directly or through investigative
agents, prior to the commencement of criminal or civil enforcement proceedings.
When communicating with the accused in a criminal matter, a government lawyer
must comply with this Rule in addition to honoring the constitutional rights of
the accused. The fact that a communication does not violate a state or federal
constitutional right is insufficient to establish that the communication is
permissible under this Rule.

[6] A lawyer who is uncertain whether a
communication with a represented person is permissible may seek a court order.
A lawyer may also seek a court order in exceptional circumstances to authorize
a communication that would otherwise be prohibited by this Rule, for example,
where communication with a person represented by counsel is necessary to avoid
reasonably certain injury.

[7] In the case of a represented organization,
this Rule prohibits communications with a constituent of the organization who
supervises, directs or regularly consults with the organization's lawyer
concerning the matter or has authority to obligate the organization with
respect to the matter or whose act or omission in connection with the matter
may be imputed to the organization for purposes of civil or criminal liability.
Consent of the organization's lawyer is not required for communication with a
former constituent. If a constituent of the organization is represented in the
matter by his or her own counsel, the consent by that counsel to a communication
will be sufficient for purposes of this Rule. Compare Rule 3.4(f). In
communicating with a current or former constituent of an organization, a lawyer
must not use methods of obtaining evidence that violate the legal rights of the
organization. See Rule 4.4.

[8] The prohibition on communications with a
represented person only applies in circumstances where the lawyer knows that
the person is in fact represented in the matter to be discussed. This means
that the lawyer has actual knowledge of the fact of the representation; but
such actual knowledge may be inferred from the circumstances. See Rule 1.0(f).
Thus, the lawyer cannot evade the requirement of obtaining the consent of
counsel by closing eyes to the obvious.

[9] In the event the person with whom the
lawyer communicates is not known to be represented by counsel in the matter,
the lawyer's communications are subject to Rule 4.3.

In dealing on behalf of a client with a person who is not
represented by counsel, a lawyer shall not state or imply that the lawyer is
disinterested. When the lawyer knows or reasonably should know that the
unrepresented person misunderstands the lawyer's role in the matter, the lawyer
shall make reasonable efforts to correct the misunderstanding. The lawyer shall
not give legal advice to an unrepresented person, other than the advice to
secure counsel, if the lawyer knows or reasonably should know that the
interests of such person are or have a reasonable possibility of being in
conflict with the interests of the client.

Comment

[1] An unrepresented person, particularly one
not experienced in dealing with legal matters, might assume that a lawyer is
disinterested in loyalties or is a disinterested authority on the law even when
the lawyer represents a client. In order to avoid a misunderstanding, a lawyer
will typically need to identify the lawyer's client and, where necessary,
explain that the client has interests opposed to those of the unrepresented
person. For misunderstandings that sometimes arise when a lawyer for an
organization deals with an unrepresented constituent, see Rule 1.13(d).

[2] The Rule distinguishes between situations
involving unrepresented persons whose interests may be adverse to those of the
lawyer's client and those in which the person's interests are not in conflict
with the client's. In the former situation, the possibility that the lawyer
will compromise the unrepresented person's interests is so great that the Rule
prohibits the giving of any advice, apart from the advice to obtain counsel.
Whether a lawyer is giving impermissible advice may depend on the experience
and sophistication of the unrepresented person, as well as the setting in which
the behavior and comments occur. This Rule does not prohibit a lawyer from
negotiating the terms of a transaction or settling a dispute with an
unrepresented person. So long as the lawyer has explained that the lawyer
represents an adverse party and is not representing the person, the lawyer may
inform the person of the terms on which the lawyer's client will enter into an
agreement or settle a matter, prepare documents that require the person's
signature and explain the lawyer's own view of the meaning of the document or
the lawyer's view of the underlying legal obligations.

(a) In representing a client, a lawyer shall not use means
that have no substantial purpose other than to embarrass, delay, or burden a
third person, or use methods of obtaining evidence that violate the legal
rights of such a person.

(b) A lawyer who receives a document relating to the
representation of the lawyer's client and knows or reasonably should know that
the document was inadvertently sent shall promptly notify the sender.

Comment

[1] Responsibility to a client requires a
lawyer to subordinate the interests of others to those of the client, but that
responsibility does not imply that a lawyer may disregard the rights of third
persons. It is impractical to catalogue all such rights, but they include legal
restrictions on methods of obtaining evidence from third persons and
unwarranted intrusions into privileged relationships, such as the client-lawyer
relationship.

[2] Paragraph (b) recognizes that lawyers
sometimes receive documents that were mistakenly sent or produced by opposing
parties or their lawyers. If a lawyer knows or reasonably should know that such
a document was sent inadvertently, then this Rule requires the lawyer to
promptly notify the sender in order to permit that person to take protective
measures. Whether the lawyer is required to take additional steps, such as
returning the original document, is a matter of law beyond the scope of these
Rules, as is the question of whether the privileged status of a document has been
waived. Similarly, this Rule does not address the legal duties of a lawyer who
receives a document that the lawyer knows or reasonably should know may have
been wrongfully obtained by the sending person. For purposes of this Rule,
“document” includes e-mail or other electronic modes of transmission subject to
being read or put into readable form.

[3] Some lawyers may choose to return a
document unread, for example, when the lawyer learns before receiving the
document that it was inadvertently sent to the wrong address. Where a lawyer is
not required by applicable law to do so, the decision to voluntarily return
such a document is a matter of professional judgment ordinarily reserved to the
lawyer. See Rules 1.2 and 1.4.

(a) A partner in a law firm, and a lawyer who individually
or together with other lawyers possess comparable managerial authority in a law
firm, shall make reasonable efforts to ensure that the firm has in effect
measures giving reasonable assurance that all lawyers in the firm conform to
the Rules of Professional Conduct.

(b) A lawyer having direct supervisory authority over
another lawyer shall make reasonable efforts to ensure that the other lawyer
conforms to the Rules of Professional Conduct.

(c) A lawyer shall be responsible for another lawyer's
violation of the Rules of Professional Conduct if:

(1) the lawyer orders or, with knowledge of the specific
conduct, ratifies the conduct involved; or

(2) the lawyer is a partner or has comparable managerial
authority in the law firm in which the other lawyer practices, or has direct
supervisory authority over the other lawyer, and knows of the conduct at a time
when its consequences can be avoided or mitigated but fails to take reasonable
remedial action.

Comment

[1] Paragraph (a) applies to lawyers who have
managerial authority over the professional work of a firm. See Rule 1.0(c).
This includes members of a partnership, the shareholders in a law firm
organized as a professional corporation, and members of other associations
authorized to practice law; lawyers having comparable managerial authority in a
legal services organization or a law department of an enterprise or government
agency; and lawyers who have intermediate managerial responsibilities in a
firm. Paragraph (b) applies to lawyers who have supervisory authority over the
work of other lawyers in a firm.

[2] Paragraph (a) requires lawyers with
managerial authority within a firm to make reasonable efforts to establish
internal policies and procedures designed to provide reasonable assurance that
all lawyers in the firm will conform to the Rules of Professional Conduct. Such
policies and procedures may include those designed to detect and resolve
conflicts of interest, identify dates by which actions must be taken in pending
matters, account for client funds and property and ensure that inexperienced
lawyers are properly supervised.

[3] Other measures that may be required to
fulfill the responsibility prescribed in paragraph (a) can depend on the firm's
structure and the nature of its practice. In a small firm of experienced
lawyers, informal supervision and periodic review of compliance with the
required systems ordinarily will suffice. In a large firm, or in practice
situations in which difficult ethical problems frequently arise, more elaborate
measures may be necessary. Some firms, for example, have a procedure whereby
junior lawyers can make confidential referral of ethical problems directly to a
designated senior partner or special committee. See Rule 5.2. Firms, whether
large or small, may also rely on continuing legal education in professional
ethics. In any event, the ethical atmosphere of a firm can influence the
conduct of all its members and the partners may not assume that all lawyers
associated with the firm will inevitably conform to the Rules.

[4] Paragraph (c) expresses a general principle
of personal responsibility for acts of another. See also Rule 8.4(a).

[5] Paragraph (c)(2) defines the duty of a
partner or other lawyer having comparable managerial authority in a law firm,
as well as a lawyer who has direct supervisory authority over performance of
specific legal work by another lawyer. Whether a lawyer has supervisory
authority in particular circumstances is a question of fact. Partners and
lawyers with comparable authority have at least indirect responsibility for all
work being done by the firm, while a partner or manager in charge of a
particular matter ordinarily also has supervisory responsibility for the work
of other firm lawyers engaged in the matter. Appropriate remedial action by a
partner or managing lawyer would depend on the immediacy of that lawyer's involvement
and the seriousness of the misconduct. A supervisor is required to intervene to
prevent avoidable consequences of misconduct if the supervisor knows that the
misconduct occurred. Thus, if a supervising lawyer knows that a subordinate
misrepresented a matter to an opposing party in negotiation, the supervisor as
well as the subordinate has a duty to correct the misrepresentation.

[6] Professional misconduct by a lawyer under
supervision could reveal a violation of paragraph (b) on the part of the supervisory
lawyer even though it does not entail a violation of paragraph (c) because
there was no direction, ratification or knowledge of the violation.

[7] Apart from this Rule and Rule 8.4(a), a
lawyer does not have disciplinary liability for the conduct of a partner,
associate or subordinate. Whether a lawyer may be liable civilly or criminally
for another lawyer's conduct is a question of law beyond the scope of these
Rules.

[8] The duties imposed by this Rule on managing
and supervising lawyers do not alter the personal duty of each lawyer in a firm
to abide by the Rules of Professional Conduct. See Rule 5.2(a).

(a) A lawyer is bound by the Rules of Professional Conduct
notwithstanding that the lawyer acted at the direction of another person.

(b) A subordinate lawyer does not violate the Rules of
Professional Conduct if that lawyer acts in accordance with a supervisory
lawyer's reasonable resolution of an arguable question of professional duty.

Comment

[1] Although a lawyer is not relieved of
responsibility for a violation by the fact that the lawyer acted at the
direction of a supervisor, that fact may be relevant in determining whether a
lawyer had the knowledge required to render conduct a violation of the Rules.
For example, if a subordinate filed a frivolous pleading at the direction of a
supervisor, the subordinate would not be guilty of a professional violation
unless the subordinate knew of the document's frivolous character.

[2] When lawyers in a supervisor-subordinate
relationship encounter a matter involving professional judgment as to ethical
duty, the supervisor may assume responsibility for making the judgment.
Otherwise a consistent course of action or position could not be taken. If the question
can reasonably be answered only one way, the duty of both lawyers is clear and
they are equally responsible for fulfilling it. However, if the question is
reasonably arguable, someone has to decide upon the course of action. That
authority ordinarily reposes in the supervisor, and a subordinate may be guided
accordingly. For example, if a question arises whether the interests of two
clients conflict under Rule 1.7, the supervisor's reasonable resolution of the
question should protect the subordinate professionally if the resolution is
subsequently challenged.

With respect to a nonlawyer employed or retained by or
associated with a lawyer:

(a) a partner, and a lawyer who individually or together
with other lawyers possess comparable managerial authority in a law firm shall
make reasonable efforts to ensure that the firm has in effect measures giving
reasonable assurance that the person's conduct is compatible with the
professional obligations of the lawyer;

(b) a lawyer having direct supervisory authority over the
nonlawyer shall make reasonable efforts to ensure that the person's conduct is
compatible with the professional obligations of the lawyer; and

(c) a lawyer shall be responsible for conduct of such a
person that would be a violation of the Rules of Professional Conduct if
engaged in by a lawyer if:

(1) the lawyer orders or, with the knowledge of the specific
conduct, ratifies the conduct involved; or

(2) the lawyer is a partner or has comparable managerial
authority in the law firm in which the person is employed, or has direct
supervisory authority over the person, and knows of the conduct at a time when
its consequences can be avoided or mitigated but fails to take reasonable
remedial action.

Comment

[1] Lawyers generally employ assistants in
their practice, including secretaries, investigators, law student interns,
paralegals and other paraprofessionals. Such assistants, whether employees or
independent contractors, act for the lawyer in rendition of the lawyer's
professional services. A lawyer must give such assistants appropriate
instruction and supervision concerning the ethical aspects of their employment,
particularly regarding the obligation not to disclose information relating to representation
of the client, and should be responsible for their work product. The measures
employed in supervising nonlawyers should take account of the fact that they
may not have legal training and are not subject to professional discipline.

[2] Paragraph (a) requires lawyers with
managerial authority within a law firm to make reasonable efforts to establish
internal policies and procedures designed to provide reasonable assurance that
nonlawyers in the firm will act in a way compatible with the Rules of
Professional Conduct. See Comment [1] to Rule 5.1. Paragraph (b) applies to
lawyers who have supervisory authority over the work of a nonlawyer. Paragraph
(c) specifies the circumstances in which a lawyer is responsible for conduct of
a nonlawyer that would be a violation of the Rules of Professional Conduct if
engaged in by a lawyer.

(a) A lawyer or law firm shall not share legal fees with a
nonlawyer, except that:

(1) an agreement by a lawyer with the lawyer's firm,
partner, or associate may provide for the payment of money, over a reasonable
period of time after the lawyer's death, to the lawyer's estate or to one or
more specified persons;

(2) a lawyer who purchases the practice of a deceased,
disabled, or disappeared lawyer may, pursuant to the provisions of Rule 1.17,
pay to the estate or other representative of that lawyer the agreed upon
purchase price; and

(3) a lawyer or law firm may include nonlawyer employees in
a compensation or retirement plan, even though the plan is based in whole or in
part on a profit-sharing arrangement.

(b) A lawyer shall not form a partnership with a nonlawyer
if any of the activities of the partnership consist of the practice of law.

(c) A lawyer shall not permit a person who recommends,
employs, or pays the lawyer to render legal services for another to direct or
regulate the lawyer's professional judgment in rendering such legal services.

(d) A lawyer shall not practice with or in the form of a
professional corporation or association authorized to practice law for a
profit, if:

(1) a nonlawyer owns any interest therein, except that a
fiduciary representative of the estate of a lawyer may hold the stock or
interest of the lawyer for a reasonable time during administration;

(2) a nonlawyer is a corporate director or officer thereof
or occupies the position of similar responsibility in any form of association
other than a corporation; or

(3) a nonlawyer has the right to direct or control the
professional judgment of a lawyer.

Comment

[1] The provisions of this Rule express
traditional limitations on sharing fees. These limitations are to protect the
lawyer's professional independence of judgment. Where someone other than the
client pays the lawyer's fee or salary, or recommends employment of the lawyer,
that arrangement does not modify the lawyer's obligation to the client. As
stated in paragraph (c), such arrangements should not interfere with the
lawyer's professional judgment.

[2] This Rule also expresses traditional limitations
on permitting a third party to direct or regulate the lawyer's professional
judgment in rendering legal services to another. See also Rule 1.8(f) (lawyer
may accept compensation from a third party as long as there is no interference
with the lawyer's independent professional judgment and the client gives
informed consent).

(a) A lawyer shall not practice law in a jurisdiction in
violation of the regulation of the legal profession in that jurisdiction, or
assist another in doing so.

(b) A lawyer who is not admitted to practice in this
jurisdiction shall not:

(1) except as authorized by these Rules or other law,
establish an office or other systematic and continuous presence in this
jurisdiction for the practice of law; or

(2) hold out to the public or otherwise represent that the
lawyer is admitted to practice law in this jurisdiction.

(c) A lawyer who is not admitted to practice in this
jurisdiction, but is admitted in another United States jurisdiction, and not
disbarred or suspended from practice in any jurisdiction, may provide legal
services on a temporary basis in this jurisdiction that:

(1) are undertaken in association with a lawyer who is
admitted to practice in this jurisdiction and who actively participates in the
matter;

(2) are in or reasonably related to a pending or potential
proceeding before a tribunal in this or another jurisdiction, if the lawyer, or
a person the lawyer is assisting, is authorized by law or order to appear in
such proceeding or reasonably expects to be so authorized;

(3) are in or reasonably related to a pending or potential
arbitration, mediation, or other alternative dispute resolution proceeding in
this or another jurisdiction, if the services arise out of or are reasonably
related to the lawyer's practice in a jurisdiction in which the lawyer is
admitted to practice and are not services for which the forum requires temporary
admission; or

(4) are not within paragraphs (c)(2) or (c)(3) and arise out
of or are reasonably related to the lawyer's practice in a jurisdiction in
which the lawyer is admitted to practice.

(d) A lawyer who is not admitted to practice in this
jurisdiction, but is admitted in another United States jurisdiction, or in a foreign
jurisdiction, and not disbarred or suspended from practice in any jurisdiction,
may provide legal services in this jurisdiction if:

(1) the lawyer does not establish an office or other
systematic and continuous presence in this jurisdiction for the practice of law
and the legal services are provided to the lawyer's employer or its
organizational affiliates and are not services for which the forum requires temporary
admission; or

(2) the services are services that the lawyer is authorized
to provide by federal law or other law of this jurisdiction.

Comment

[1] A lawyer may practice law only in a
jurisdiction in which the lawyer is authorized to practice. A lawyer may be
admitted to practice law in a jurisdiction on a regular basis or may be authorized
by court rule or order or by law to practice for a limited purpose or on a
restricted basis. Paragraph (a) applies to unauthorized practice of law by a
lawyer, whether through the lawyer's direct action or by the lawyer assisting
another person.

[2] The definition of the practice of law is
established by law and varies from one jurisdiction to another. Whatever the
definition, limiting the practice of law to members of the bar protects the
public against rendition of legal services by unqualified persons. This Rule
does not prohibit a lawyer from employing the services of paralegals and other
paraprofessionals and delegating functions to them, so long as the lawyer
supervises the delegated work and retains responsibility for their work. See
Rule 5.3.

[3] A lawyer may provide professional advice
and instruction to nonlawyers whose employment requires knowledge of the law;
for example, claims adjusters, employees of financial or commercial
institutions, social workers, accountants and persons employed in government
agencies. Lawyers also may assist independent nonlawyers, such as paralegals
and other paraprofessionals, who are authorized by the law of a jurisdiction to
provide particular law-related services. In addition, a lawyer may counsel nonlawyers
who wish to proceed pro se.

[4] Other than as authorized by law or this
Rule, a lawyer who is not admitted to practice generally in the State of
Indiana violates paragraph (b) if the lawyer establishes an office or other
systematic and continuous presence in the State of Indiana for the practice of
law. Presence may be systematic and continuous even if the lawyer is not
physically present here. For example, advertising in media specifically
targeted to Indiana residents or initiating contact with Indiana residents for
solicitation purposes could be viewed as systematic and continuous presence. In
any event, such a lawyer must not hold out to the public or otherwise represent
that the lawyer is admitted to practice law in the State of Indiana. See also Rules
7.1(a) and 7.5(b).

[5] There are occasions in which a lawyer
admitted to practice in another United States jurisdiction, and not disbarred
or suspended from practice in any jurisdiction, may provide legal services on a
temporary basis in this jurisdiction under circumstances that do not create an
unreasonable risk to the interests of his or her clients, the public or the
courts. Paragraph (c) identifies four such circumstances. The fact that conduct
is not so identified does not imply that the conduct is or is not authorized.
With the exception of paragraph (d)(2), this Rule does not authorize a U.S. or
foreign lawyer to establish an office or other systematic and continuous
presence in this jurisdiction without being admitted to practice generally here
or licensed pursuant to Admission and Discipline Rule 6.

[6] There is no single test to determine
whether a lawyer's services are provided on a “temporary basis” in this
jurisdiction, and may therefore be permissible under paragraph (c). Services
may be “temporary” even though the lawyer provides services in this
jurisdiction on a recurring basis, or for an extended period of time, as when
the lawyer is representing a client in a single lengthy negotiation or
litigation.

[7] Paragraph (c) applies to lawyers who are
admitted to practice law in any United States jurisdiction, which includes the
District of Columbia and any state, territory or commonwealth of the United
States. The word “admitted” in paragraph (c) contemplates that the lawyer is
authorized to practice in the jurisdiction in which the lawyer is admitted and
excludes a lawyer who while technically admitted is not authorized to practice,
because, for example, the lawyer is on inactive status. Paragraph (d) applies
to lawyers admitted to practice in a United States jurisdiction and to lawyers
admitted in a foreign jurisdiction.

[8] Paragraph (c)(1) recognizes that the
interests of clients and the public are protected if a lawyer admitted only in
another jurisdiction associates with a lawyer licensed to practice in this
jurisdiction. For this paragraph to apply, however, the lawyer admitted to
practice in this jurisdiction must actively participate in and share
responsibility for the representation of the client.

[9] Lawyers not admitted to practice generally
in a jurisdiction may be authorized by law or order of a tribunal or an
administrative agency to appear before the tribunal or agency. This authority
may be granted pursuant to formal rules governing admission pro hac vice
or pursuant to informal practice of the tribunal or agency. Under paragraph
(c)(2), a lawyer does not violate this Rule when the lawyer appears before a
tribunal or agency pursuant to such authority. To the extent that a court rule
or other law of this jurisdiction requires a lawyer who is not admitted to
practice in this jurisdiction to obtain admission pro hac vice before
appearing before a tribunal or administrative agency, this Rule requires the
lawyer to obtain that authority.

[10] Paragraph (c)(2) also provides that a lawyer
rendering services in this jurisdiction on a temporary basis does not violate
this Rule when the lawyer engages in conduct in anticipation of a proceeding or
hearing in a jurisdiction in which the lawyer is authorized to practice law or
in which the lawyer reasonably expects to be admitted pro hac vice.
Examples of such conduct include meetings with the client, interviews of
potential witnesses, and the review of documents. Similarly, a lawyer admitted
only in another jurisdiction may engage in conduct temporarily in this
jurisdiction in connection with pending litigation in another jurisdiction in
which the lawyer is or reasonably expects to be authorized to appear, including
taking depositions in this jurisdiction.

[11] When a lawyer has been or reasonably
expects to be admitted to appear before a court or administrative agency,
paragraph (c)(2) also permits conduct by lawyers who are associated with that
lawyer in the matter, but who do not expect to appear before the court or
administrative agency. For example, subordinate lawyers may conduct research,
review documents, and attend meetings with witnesses in support of the lawyer
responsible for the litigation.

[12] Paragraph (c)(3) permits a lawyer admitted
to practice law in another jurisdiction to perform services on a temporary
basis in this jurisdiction if those services are in or reasonably related to a
pending or potential arbitration, mediation, or other alternative dispute
resolution proceeding in this or another jurisdiction, if the services arise
out of or are reasonably related to the lawyer's practice in a jurisdiction in
which the lawyer is admitted to practice. The lawyer, however, must obtain
admission pro hac vice in the case of a court-annexed arbitration or
mediation or otherwise if court rules or law so require.

[13] Paragraph (c)(4) permits a lawyer admitted
in another jurisdiction to provide certain legal services on a temporary basis
in this jurisdiction that arise out of or are reasonably related to the
lawyer's practice in a jurisdiction in which the lawyer is admitted but are not
within paragraphs (c)(2) or (c)(3). These services include both legal services
and services that nonlawyers may perform but that are considered the practice
of law when performed by lawyers.

[14] Paragraphs (c)(3) and (c)(4) require that
the services arise out of or be reasonably related to the lawyer's practice in
a jurisdiction in which the lawyer is admitted. A variety of factors evidence
such a relationship. The lawyer's client may have been previously represented
by the lawyer, or may be resident in or have substantial contacts with the
jurisdiction in which the lawyer is admitted. The matter, although involving
other jurisdictions, may have a significant connection with that jurisdiction.
In other cases, significant aspects of the lawyer's work might be conducted in
that jurisdiction or a significant aspect of the matter may involve the law of
that jurisdiction. The necessary relationship might arise when the client's
activities or the legal issues involve multiple jurisdictions, such as when the
officers of a multinational corporation survey potential business sites and
seek the services of their lawyer in assessing the relative merits of each. In
addition, the services may draw on the lawyer's recognized expertise developed
through the regular practice of law on behalf of clients in matters involving a
particular body of federal, nationally uniform, foreign, or international law.

[15] Paragraph (d) identifies two circumstances
in which a lawyer who is admitted to practice in another United States or a
foreign jurisdiction, and is not disbarred or suspended from practice in any
jurisdiction, may establish an office or other systematic and continuous
presence in this jurisdiction for the practice of law as well as provide legal
services on a temporary basis. Except as provided in paragraphs (d)(1) and
(d)(2), a lawyer who is admitted to practice law in another jurisdiction and
who establishes an office or other systematic or continuous presence in this
jurisdiction must become admitted to practice law generally in this
jurisdiction.

[16] Paragraph (d)(1) applies to a United States
or foreign lawyer who is employed by a client to provide legal services to the
client or its organizational affiliates, i.e., entities that control, are
controlled by, or are under common control with the employer. This paragraph
does not authorize the provision of personal legal services to the employer's
officers or employees. The paragraph applies to in-house corporate lawyers,
government lawyers and others who are employed to render legal services to the
employer. The lawyer's ability to represent the employer outside the
jurisdiction in which the lawyer is licensed generally serves the interests of
the employer and does not create an unreasonable risk to the client and others
because the employer is well situated to assess the lawyer's qualifications and
the quality of the lawyer's work.

[17] If an employed lawyer establishes an office
or other systematic presence in this jurisdiction for the purpose of rendering
legal services to the employer, the lawyer shall be subject to registration or
other requirements, including assessments for client protection funds and
mandatory continuing legal education. See, Ind. Admission and Discipline Rule
6, sections 2 through 5.

[18] Paragraph (d)(2) recognizes that a lawyer
may provide legal services in a jurisdiction in which the lawyer is not
licensed when authorized to do so by federal or other law, which includes
statute, court rule, executive regulation or judicial precedent.

[19] A lawyer who practices law in the State of
Indiana pursuant to paragraphs (c) or (d) or otherwise is subject to the
disciplinary authority of the State of Indiana. See Rule 8.5(a).

[20] In some circumstances, a lawyer who
practices law in the State of Indiana pursuant to paragraphs (c) or (d) may
have to inform the client that the lawyer is not licensed to practice law in
the State of Indiana. For example, that may be required when the representation
occurs primarily in the State of Indiana and requires knowledge of the law of
the State of Indiana. See Rule 1.4(b).

[21] Paragraphs (c) and (d) do not authorize
communications advertising legal services to prospective clients in the State
of Indiana by lawyers who are admitted to practice in other jurisdictions.
Whether and how lawyers may communicate the availability of their services to
prospective clients in the State of Indiana is governed by Rules 7.2 to 7.5.

(a) a partnership, shareholder, operating, employment, or
other similar type of agreement that restricts the rights of a lawyer to
practice after termination of the relationship, except an agreement concerning
benefits upon retirement; or

(b) an agreement in which a restriction on the lawyer's
right to practice is part of the settlement of a client controversy.

Comment

[1] An agreement restricting the right of
lawyers to practice after leaving a firm not only limits their professional
autonomy but also limits the freedom of clients to choose a lawyer. Paragraph
(a) prohibits such agreements except for restrictions incident to provisions
concerning retirement benefits for service with the firm.

[2] Paragraph (b) prohibits a lawyer from
agreeing not to represent other persons in connection with settling a claim on
behalf of a client.

[3] This Rule does not apply to prohibit restrictions
that may be included in the terms of the sale of a law practice pursuant to
Rule 1.17.

(a) A lawyer shall be subject to the Rules of Professional
Conduct with respect to the provision of law-related services, as defined in
paragraph (b), if the law-related services are provided:

(1) by the lawyer in circumstances that are not distinct
from the lawyer's provision of legal services to clients; or

(2) in other circumstance by an entity controlled by the
lawyer individually or with others if the lawyer fails to take reasonable
measures to assure that a person obtaining the law-related services knows that
the services are not legal services and that the protections of the
client-lawyer relationship do not exist.

(b) The term “law-related services” denotes services that
might reasonably be performed in conjunction with and in substance are related
to the provision of legal services, and that are not prohibited as unauthorized
practice of law when provided by a non-lawyer.

Comment

[1] When a lawyer performs law-related
services or controls an organization that does so or uses a law license to
promote an organization or otherwise creates a basis for a belief that the
client may be dealing with an attorney (such as where a person uses “J.D.” on
business cards or stationary or hangs framed law degrees or court admissions on
office walls), there exists the potential for ethical problems. Principal among
these is the possibility that the person for whom the law-related services are
performed fails to understand that the services may not carry with them the
protections normally afforded as part of the client-lawyer relationship. The
recipient of the law-related services may expect, for example, that the protection
of client confidences, prohibitions against representation of persons with
conflicting interests, and obligations of a lawyer to maintain professional
independence apply to the provision of law-related services when that may not
be the case.

[2] Rule 5.7 applies to the provision of
law-related services by a lawyer even when the lawyer does not provide any
legal services to the person for whom the law-related services are performed
and whether the law-related services are performed through a law firm or a
separate entity. The Rule identifies the circumstances in which all of the
Rules of Professional Conduct apply to the provision of law-related services.
Even when those circumstances do not exist, however, the conduct of a lawyer
involved in the provision of law-related services is subject to those Rules
that apply generally to lawyer conduct, regardless of whether the conduct
involves the provision of legal services. See, e.g., Rule 8.4.

[3] When law-related services are provided by a
lawyer under circumstances that are not distinct from the lawyer's provision of
legal services to clients, the lawyer in providing the law-related services
must adhere to the requirements of the Rules of Professional Conduct as
provided in paragraph (a)(1). Even when the law-related and legal services are
provided in circumstances that are distinct from each other, for example
through separate entities or different support staff within the law firm, the
Rules of Professional Conduct apply to the lawyer as provided in paragraph
(a)(2) unless the lawyer takes reasonable measures to assure that the recipient
of the law-related services knows that the services are not legal services and
that the protections of the client-lawyer relationship do not apply.

[4] Law-related services also may be provided
through an entity that is distinct from that through which the lawyer provides
legal services. If the lawyer individually or with others has control of such
an entity's operations, the Rule requires the lawyer to take reasonable
measures to assure that each person using the services of the entity knows that
the services provided by the entity are not legal services and that the Rules
of Professional Conduct that relate to the client-lawyer relationship do not
apply. A lawyer's control of an entity extends to the ability to direct its
operation. Whether a lawyer has such control will depend upon the circumstances
of the particular case.

[5] When a client-lawyer relationship exists
with a person who is referred by a lawyer to a separate law-related service
entity controlled by the lawyer, individually or with others, the lawyer must
comply with Rule 1.8(a).

[6] In taking the reasonable measures referred
to in paragraph (a)(2) to assure that a person using law-related services understands
the practical effect or significance of the inapplicability of the Rules of
Professional Conduct, the lawyer should communicate to the person receiving the
law-related services, in a manner sufficient to assure that the person
understands the significance of the fact, that the relationship of the person
to the business entity will not be a client-lawyer relationship. The
communication should be made before entering into an agreement for provision of
or providing law-related services, and preferably should be in writing.

[7] The burden is upon the lawyer to show that
the lawyer has taken reasonable measures under the circumstances to communicate
the desired understanding. For instance, a sophisticated user of law-related
services, such as a publicly held corporation, may require a lesser explanation
than someone unaccustomed to making distinctions between legal services and
law-related services, such as an individual seeking tax advice from a
lawyer-accountant or investigative services in connection with a lawsuit.

[8] Regardless of the sophistication of
potential recipients of law-related services, a lawyer should take special care
to keep separate the provision of law-related and legal services in order to
minimize the risk that the recipient will assume that the law-related services
are legal services. The risk of such confusion is especially acute when the
lawyer renders both types of services with respect to the same matter. Under
some circumstances the legal and law-related services may be so closely
entwined that they cannot be distinguished from each other, and the requirement
of disclosure and consultation imposed by paragraph (a)(2) of the Rule cannot
be met. In such a case a lawyer will be responsible for assuring that both the
lawyer's conduct and, to the extent required by Rule 5.3, that of nonlawyer
employees in the distinct entity that the lawyer controls complies in all
respects with the Rules of Professional Conduct.

[9] A broad range of economic and other
interests of clients may be served by lawyers' engaging in the delivery of
law-related services. Examples of law-related services include providing title
insurance, financial planning, accounting, real estate counseling, legislative
lobbying, economic analysis, social work, psychological counseling, tax
preparation, and medical or environmental consulting.

[10] When a lawyer is obliged to accord the
recipients of such services the protections of those Rules that apply to the
client-lawyer relationship, the lawyer must take special care to heed the
proscriptions of the Rules addressing conflict of interest (Rules 1.7 through
1.11, especially Rules 1.7(a)(2) and 1.8(a), (b) and (f)), and to scrupulously
adhere to the requirements of Rule 1.6 relating to disclosure of confidential
information. Where the provision of law-related services is subject to these
Rules, the promotion of the law-related services must also in all respects
comply with Rules 7.2, through 7.5, dealing with advertising and solicitation.
In that regard, lawyers should take special care to identify the obligations
that may be imposed as a result of a jurisdiction's decisional law.

[11] When the full protections of all of the
Indiana Rules of Professional Conduct do not apply to the provision of
law-related services, principles of law external to the Rules, for example, the
law of principal and agent, govern the legal duties owed to those receiving the
services. Those other legal principles may establish a different degree of
protection for the recipient with respect to confidentiality of information,
conflicts of interest and permissible business relationships with clients. See
also Rule 8.4 (Misconduct).

A lawyer should render public interest legal service. A
lawyer may discharge this responsibility by providing professional services at
no fee or a reduced fee to persons of limited means or to public service or
charitable groups or organizations, by service in activities for improving the
law, the legal system or the legal profession, and by financial support for
organizations that provide legal services to persons of limited means.

Comment

[1] The American Bar Association House of
Delegates has formally acknowledged “the basic responsibility of each lawyer
engaged in the practice of law to provide public interest legal services”
without fee, or at a substantially reduced fee, in one or more of the following
areas: poverty law, civil rights law, public rights law, charitable
organization representation and the administration of justice. The Indiana
State Bar Association's House of Delegates has declared that “all Indiana
lawyers have an ethical and a social obligation to provide uncompensated legal
assistance to poor persons” and adopted an aspirational goal of fifty hours a
year, or an equivalent financial contribution, for each member of the bar.

For purposes of this paragraph:

(a) Poverty law means legal representation of a client who
does not have the financial resources to compensate counsel.

(b) Civil rights (including civil liberties) law means legal
representation involving a right of an individual that society has a special
interest in protecting.

(c) Public rights law means legal representation involving
an important right belonging to a significant segment of the public.

(d) Charitable organization representation means legal
service to or representation of charitable, religious, civic, governmental and
educational institutions in matters in furtherance of the organization’s
purpose, where the payment of customary legal fees would significantly deplete
the organization’s economic resources or where it would be inappropriate.

(e) Administration of justice means activity, whether under
bar association auspices or otherwise, which is designed to increase the
availability of legal representation, or otherwise improve the administration
of justice. This may include increasing the availability of legal resources to
individuals or groups, improving the judicial system, or reforming legal
institutions that significantly affect the lives of disadvantaged individuals
and groups.

[2] The
rights and responsibilities of individuals and organizations in the United
States are increasingly defined in legal terms. As a consequence, legal
assistance in coping with the web of statutes, rules and regulations is
imperative for persons of modest and limited means, as well as for the
relatively well-to-do.

[3] The basic responsibility for providing
legal services for those unable to pay ultimately rests upon the individual
lawyer, and personal involvement in the problems of the disadvantaged can be
one of the most rewarding experiences in the life of a lawyer. Every lawyer,
regardless of professional prominence or professional workload, should find
time to participate in or otherwise support the provision of legal services to
the disadvantaged. The provision of free legal services to those unable to pay
reasonable fees continues to be an obligation of each lawyer as well as the
profession generally, but the efforts of individual lawyers are often not enough
to meet the need. Thus, it has been necessary for the profession and government
to institute additional programs to provide legal services. Accordingly, legal
aid offices, lawyer referral services and other related programs have been
developed, and others will be developed by the profession and government. Every
lawyer should support all proper efforts to meet this need for legal services.

[4] Typically, to fulfill the aspirational
goals in Comment 1, legal services should be performed without the expectation
of compensation. If, during the course of representation, a paying client is no
longer able to afford a lawyer’s legal services, and the lawyer continues to
represent the client at no charge, any work performed with the knowledge and
intent of no compensation may be considered pro bono legal service.

The award of attorney’s fees in a case originally
accepted as pro bono does not disqualify such services from fulfilling the
foregoing aspirational goals. However, lawyers who receive attorney’s fees in
pro bono cases are strongly encouraged to contribute an appropriate portion of
such fees to organizations or projects that benefit persons of limited means,
or that promote access to justice for persons of limited means.

[5] Typically, the following would not fulfill
the aspirational goals in Comment 1:

(a) Legal services written off as bad debts.

(b) Legal services performed for family members.

(c) Legal services performed for political organizations for
election purposes.

(d) Activities that do not involve the provision of legal
services, such as serving on the board of a charitable organization.

A lawyer shall not seek to avoid appointment by a tribunal
to represent a person except for good cause, such as when:

(a) representing the client is likely to result in violation
of the Rules of Professional Conduct or other law;

(b) representing the client is likely to result in an
unreasonable financial burden on the lawyer; or

(c) the client or the cause is so repugnant to the lawyer
as to be likely to impair the client-lawyer relationship or the lawyer's
ability to represent the client.

Comment

[1] A lawyer ordinarily is not obliged to
accept a client whose character or cause the lawyer regards as repugnant. The
lawyer's freedom to select clients is, however, qualified. All lawyers have a
responsibility to assist in providing pro bono publico service. See Rule 6.1.
An individual lawyer may fulfill this responsibility by accepting a fair share
of unpopular matters or indigent or unpopular clients. A lawyer may also be
subject to appointment by a court to serve unpopular clients or persons unable
to afford legal services.

Appointed Counsel

[2] For good cause a lawyer may seek to decline
an appointment to represent a person who cannot afford to retain counsel or
whose cause is unpopular. Good cause exists if the lawyer could not handle the
matter competently, see Rule 1.1, or if undertaking the representation would
result in an improper conflict of interest, for example, when the client or the
cause is so repugnant to the lawyer as to be likely to impair the client-lawyer
relationship or the lawyer's ability to represent the client. A lawyer may also
seek to decline an appointment if acceptance would be unreasonably burdensome,
for example, when it would impose a financial sacrifice so great as to be
unjust.

[3] An appointed lawyer has the same
obligations to the client as retained counsel, including the obligations of
loyalty and confidentiality, and is subject to the same limitations on the
client-lawyer relationship, such as the obligation to refrain from assisting
the client in violation of the Rules.

A lawyer may serve as a director, officer or member of a
legal services organization, apart from the law firm in which the lawyer
practices, notwithstanding that the organization serves persons having
interests adverse to a client of the lawyer. The lawyer shall not knowingly
participate in a decision or action of the organization:

(a) if participating in the decision or action would be
incompatible with the lawyer's obligations to a client under Rule 1.7; or

(b) where the decision or action could have a material
adverse effect on the representation of a client of the organization whose
interests are adverse to a client of the lawyer.

Comment

[1] Lawyers should be encouraged to support
and participate in legal service organizations. A lawyer who is an officer or a
member of such an organization does not thereby have a client-lawyer relationship
with persons served by the organization. However, there is potential conflict
between the interests of such persons and the interests of the lawyer's
clients. If the possibility of such conflict disqualified a lawyer from serving
on the board of a legal services organization, the profession's involvement in
such organizations would be severely curtailed.

[2] It may be necessary in appropriate cases to
reassure a client of the organization that the representation will not be
affected by conflicting loyalties of a member of the board. Established,
written policies in this respect can enhance the credibility of such
assurances.

A lawyer may serve as a director, officer or member of an organization
involved in reform of the law or its administration notwithstanding that the
reform may affect the interests of a client of the lawyer. When the lawyer
knows that the interests of a client may be materially benefited by a decision
in which the lawyer participates, the lawyer shall disclose that fact but need
not identify the client.

Comment

[1] Lawyers involved in organizations seeking
law reform generally do not have a client-lawyer relationship with the
organization. Otherwise, it might follow that a lawyer could not be involved in
a bar association law reform program that might indirectly affect a client. See
also Rule 1.2(b). For example, a lawyer specializing in antitrust litigation
might be regarded as disqualified from participating in drafting revisions of
rules governing that subject. In determining the nature and scope of
participation in such activities, a lawyer should be mindful of obligations to
clients under other Rules, particularly Rule 1.7. A lawyer is professionally
obligated to protect the integrity of the program by making an appropriate
disclosure within the organization when the lawyer knows a private client might
be materially benefited.

(a) A lawyer who, under the auspices of a program sponsored
by a nonprofit organization or court, provides short-term limited legal
services to a client without expectation by either the lawyer or the client
that the lawyer will provide continuing representation in the matter:

(1) is subject to Rules 1.7 and 1.9(a) only if the lawyer
knows that the representation of the client involves a conflict of interest;
and

(2) is subject to Rule 1.10 only if the lawyer knows that
another lawyer associated with the lawyer in a law firm is disqualified by Rule
1.7 or 1.9(a) with respect to the matter.

(b) Except as provided in paragraph (a)(2), Rule 1.10 is
inapplicable to a representation governed by this Rule.

Comment

[1] Legal services organizations, courts and
various nonprofit organizations have established programs through which lawyers
provide short-term limited legal services -- such as advice or the completion
of legal forms -- that will assist persons to address their legal problems
without further representation by a lawyer. In these programs, such as
legal-advice hotlines, advice-only clinics or pro se counseling programs, a
client-lawyer relationship is established, but there is no expectation that the
lawyer's representation of the client will continue beyond the limited consultation.
Such programs are normally operated under circumstances in which it is not
feasible for a lawyer to systematically screen for conflicts of interest as is
generally required before undertaking a representation. See, e.g., Rules 1.7,
1.9 and 1.10.

[2] A lawyer who provides short-term limited
legal services pursuant to this Rule must secure the client's informed consent
to the limited scope of the representation. See Rule 1.2(c). If a short-term
limited representation would not be reasonable under the circumstances, the
lawyer may offer advice to the client but must also advise the client of the
need for further assistance of counsel. Except as provided in this Rule, the
Rules of Professional Conduct, including Rules 1.6 and 1.9(c), are applicable to
the limited representation.

[3] Because a lawyer who is representing a
client in the circumstances addressed by this Rule ordinarily is not able to
check systematically for conflicts of interest, paragraph (a) requires
compliance with Rules 1.7 or 1. 9(a) only if the lawyer knows that the
representation presents a conflict of interest for the lawyer, and with Rule
1.10 only if the lawyer knows that another lawyer in the lawyer's firm is
disqualified by Rules 1.7 or 1.9(a) in the matter.

[4] Because the limited nature of the services
significantly reduces the risk of conflicts of interest with other matters
being handled by the lawyer's firm, paragraph (b) provides that Rule 1.10 is
inapplicable to a representation governed by this Rule except as provided by
paragraph (a)(2). Paragraph (a)(2) requires the participating lawyer to comply
with Rule 1.10 when the lawyer knows that the lawyer's firm is disqualified by
Rules 1.7 or 1.9(a). By virtue of paragraph (b), however, a lawyer's
participation in a short-term limited legal services program will not preclude
the lawyer's firm from undertaking or continuing the representation of a client
with interests adverse to a client being represented under the program's
auspices. Nor will the personal disqualification of a lawyer participating in
the program be imputed to other lawyers participating in the program.

[5] If, after commencing a short-term limited
representation in accordance with this Rule, a lawyer undertakes to represent
the client in the matter on an ongoing basis, Rules 1.7, 1.9(a) and 1.10 become
applicable.

(a) There
is hereby created an organization to be known as the Coalition for Court Access
(“Coalition”). The purpose of the Coalition is to act as a legal aid
organization that develops and implements a statewide plan to improve the
availability and quality of access to civil legal services for persons of
limited means. The Coalition has the following goals:

(1) Improvement
of the access to and delivery of civil legal services to persons of limited
means and low to moderate income.

(2) Integration
and coordination availability and provision of services by pro bono
organizations and other legal assistance organizations.

(3) Enhancement
of the availability of volunteer legal services for persons of limited means,
including without limitation incentivizing greater lawyer pro bono services;
assessing, utilizing, and making recommendations to the Court to improve the
Volunteer Attorney Pro Bono Plan established in Professional Conduct Rule 6.6;
and working closely with the Indiana State Bar Association, Indiana Bar
Foundation (“Bar Foundation”), and other bar associations to foster the growth
of pro bono public service and a public service culture within the Indiana bar.

(4) Consideration
and utilization of a wide variety of programs and policies to increase the
access to courts, such as strategic use of technology, community education,
public libraries, and other similar resources.

(5) Expansion
and promotion of opportunities for lawyers to volunteer their time and services
for pro bono work in litigation, mediation, and other dispute resolution
programs serving persons of limited means.

(6) As
may be deemed helpful in the pursuit of the above goals, identification of the
current and future needs, outcomes, and trends regarding access to civil legal
services by persons of limited means and promotion of ongoing development of
financial and other resources for civil legal aid organizations in Indiana.

(b) The
Coalition shall be composed of seventeen (17) members appointed by the Supreme
Court and the President of the Indiana Bar Foundation. In appointing members to
the Coalition, the Supreme Court and the Bar Foundation should seek to ensure
that members of the Coalition are representative of the different geographic
regions and judicial districts of the state, and that the members possess
skills and experience relevant to the needs of the Coalition. The Coalition’s
membership shall be comprised as follows:

(C) Four
(4) members from different pro bono organizations or other civil legal
assistance organizations; at least two (2) of these members must be from a
statewide civil legal assistance organization or a civil legal assistance
organization that provides services in multiple Indiana counties;

(D) Two
(2) members from a local or minority bar association; and

(E) Two
(2) members from the Indiana law schools accredited by the American Bar
Association.

(2) The
President of the Bar Foundation shall appoint six (6) members as follows:

(A) Two
(2) members of the Indiana State Bar Association;

(B) Two
(2) members appointed by the Bar Foundation;

(C) One
(1) member of the Indiana State Bar Association Pro Bono Committee; and

(D) One
(1) member from a non-governmental organization that serves the non-legal needs
of low-income Hoosiers.

(3) The
Indiana State Bar Association and the Bar Foundation’s immediate past
presidents, during their terms as immediate past presidents, shall also serve
as ex-officio non-voting members of the Coalition.

(4) The
Executive Director of the Indiana State Bar and the Executive Director of the
Bar Foundation shall serve as ex-officio non-voting members of the Coalition.

(5) The
Coalition shall operate as a program within the Bar Foundation. Each member of
the Coalition, except the immediate past presidents of the Indiana State Bar
Association and Bar Foundation, shall hold office for a term of three (3)
years, except for the initial appointments, which shall be staggered as
follows: three (3) members appointed by the Supreme Court shall serve one-year
terms, two (2) members appointed by the Bar Foundation president shall serve
one-year terms; four (4) members appointed by the Supreme Court shall serve
two-year terms, and two (2) members appointed by the Bar Foundation president
shall serve two-year terms; and four (4) members appointed by the Supreme Court
shall serve three-year terms, and two (2) members appointed by the Bar
Foundation president shall serve three-year terms. A member shall not serve
more than two (2) consecutive terms.

(6) Members
may resign from the Coalition by delivering a written resignation to the
Coalition chair. Members may be removed by the appointing authority. The
appointing authority shall fill any vacancy caused by resignation, removal or
otherwise, as it occurs, for the remainder of the vacated term. Any Coalition
member who fills a vacancy will be eligible to serve an additional two full
consecutive terms after completing the term of the previously vacant position they
are filling.

(7) Each
member is entitled to one (1) vote on all matters before the Coalition. There
shall be no voting by proxy. No member shall vote on any issue which may
directly or indirectly benefit a member, that member’s employer, or another
organization affiliated with the member. No member shall participate in any
meeting of the Coalition that involves any issue which may directly or
indirectly benefit a member, that member’s employer, or another organization
affiliated with the member. Members are entitled to vote by telephone or
videoconference.

(c) The
officers of the Coalition shall consist of a chair, vice-chair, and secretary.
Officers must be members of the Coalition in good standing. The Coalition chair
shall be appointed by the Supreme Court and shall serve a three-year term. The
chair shall preside at all meetings of the Coalition and perform such other
duties as may be prescribed by the Coalition. The vice-chair and secretary
shall be elected to one-year terms by the Coalition at the Coalition’s annual
meeting. The Coalition may accept nominations for vice-chair and secretary from
any member. A vacancy in the office of vice-chair or secretary for any reason
other than expiration of term may be filled for the remaining unexpired term at
any meeting of the Coalition. The vice-chair shall preside at all meetings
where the chair is unavailable and perform such other duties as may be
prescribed by the Coalition. The secretary shall keep minutes of the Coalition
meetings and perform such other duties as may be prescribed by the Coalition.
The Coalition may establish other officers as it deems appropriate. Additional
officers so elected shall hold office for such period and shall have such power
and duties as authorized by the Coalition.

(d) The
Coalition for Court Access shall have the following powers:

(1) Undertake
those tasks in collaboration with the Bar Foundation which are reasonable and
necessary to the fulfillment of the Coalition's purpose;

(2) Supervise
the district committees subject to the approval of the Bar Foundation;

(3) Make
funding recommendations to the Bar Foundation in response to district committee
plans and funding requests;

(4) Declare
the office of a member of the Coalition to be vacant in the event such member shall
be absent for three (3) consecutive regular meetings of the Coalition;

(5) Create
and dissolve any Coalition committees necessary to assist the Coalition with
the accomplishment of its mission and to appoint members to such committees
which may include members and non-members of the Coalition;

(6) Make
recommendations to the Bar Foundation and the Supreme Court for the
disbursement of available funds to civil legal aid organizations, programs,
initiatives, and projects throughout the State of Indiana;

(7) Collaborate
with state and local bar associations and other organizations, their members
and various sections and committees to help identify opportunities for them to
help support Indiana’s civil legal aid network; and

(8) Provide an
annual report of its activities to the Supreme Court by July 1 of each year.

(e) The
Bar Foundation’s authority and responsibility shall include making funding
decisions and disbursing available funds to legal aid projects or organizations
upon recommendation of the Coalition.

(f) The
members shall have the right to take any action in the absence of a meeting
which they could take at a meeting by obtaining the written approval, including
via electronic mail, of a majority of the members. Any action so approved shall
have the same effect as though taken at a meeting of the Coalition.

(g) No
member or officer shall receive compensation for any service rendered to the
Coalition. Members and officers may be reimbursed for authorized expenses
incurred in the performance of Coalition duties, provided that funds are
available and such reimbursement is approved by the Coalition.

(h) There
shall be one (1) district committee in each of the twelve (12) districts set
forth below:

District A,
consisting of the counties of Lake, Porter, Jasper, and Newton;

District B,
consisting of the counties of LaPorte, St. Joseph, Elkhart, Marshall, Starke,
and Kosciusko;

District K, consisting of the
counties of Daviess, Dubois, Gibson, Knox, Martin, Perry, Pike, Posey, Spencer,
Vanderburgh, and Warrick; and

District L, consisting of the
counties of Clark, Crawford, Floyd, Harrison, Orange, Scott, and Washington.

The Coalition has the authority
to provisionally alter the number and the composition of districts as it deems
appropriate to the Supreme Court no more than annually so the Supreme Court may
reflect the alterations in subsection (h) above.

(1) Each
district committee shall be composed of:

(A) a
judge from the district appointed by the Supreme Court to serve as chair of the
committee;

(B) to
the extent feasible, one (1) or more representatives from each voluntary bar
association in the district, one (1) representative from each pro bono and
legal assistance provider in the district, and one representative from each law
school in the district; and

(C) to
the extent feasible, at least two (2) community-at-large representatives, one
of whom shall be a resent or past recipient of pro bono publico legal services.

(2) Governance
of each district committee and terms of service of the members thereof shall be
determined by each committee. Replacement and succession members shall be
appointed by the judge designated by the Supreme Court.

(i) To
ensure an active and effective district program, each district committee shall
do the following:

(1) after
evaluating the needs of the district and the available civil legal aid
services, prepare an annual written proposal to address the district’s needs;

(2) select
and employ, if feasible, a plan administrator to provide the necessary
coordination and administrative support for the district committee;

(3) implement
the annual district plan and monitor its results;

(4) submit an
annual report to the Coalition; and

(5) submit the
plan and funding requests for individual civil legal aid organizations/projects
to the Coalition.

(j) To
encourage more lawyers to participate in pro bono activities, each district
plan should endeavor to provide various support and educational services for
pro bono attorneys, which, to the extent possible, should include:

(1) providing
intake, screening, and referral of prospective clients;

(2) matching
cases with individual attorney expertise, including the establishment of
specialized panels;

(k) The
district committee plans may include opportunities such as the following:

(1) representing
persons of limited means through case referral;

(2) representing
persons of limited means through direct contact with a lawyer when the lawyer,
before undertaking the representation, first determines client eligibility
based on standards substantially similar to those used by legal assistance
providers;

(a) Reporting Requirement. To
assess the current and future extent of volunteer legal services provided
directly to individuals of limited means and to encourage such services, an
attorney must report as part of the attorney’s annual registration, the
following information:

(1) Pro Bono Hours - no compensation. During the
previous calendar year ending December 31, I have personally provided
approximately ______ hours of legal services in Indiana or other states
directly to individuals reasonably believed to be of limited means without
charge and without any fee expectation when the services were rendered.

(2) Pro Bono Hours - substantially reduced
compensation. During the previous calendar year ending December 31, I have
personally provided approximately _____ hours of legal services directly to
individuals reasonably believed to be of limited means at a charge of less than
50% of my normal rate and without expectation of any greater fee when the
services were rendered.

(3) Financial Contribution. During the previous
calendar year ending December 31, I have either (i) made monetary contributions
of $_______ to the Indiana Bar Foundation, to any of the local IRC 501(c)(3)
pro bono districts listed at the Indiana Supreme Court website, or to a legal
service organization located in Indiana that is eligible for fee waiver under
I.C. 33-37-3-2(b); or (ii) made an in-kind contribution of tangible property
fairly valued at $ ______ to one or more of the foregoing qualifying legal
service organizations or local pro bono districts.

(4) Exempt Persons. An attorney is exempt from reporting
under this Rule who is exempt from the provision of pro bono legal services
because he or she (i) is currently serving as a member of the judiciary or
judicial staff, (ii) is a government lawyer prohibited by statute, rule,
regulation, or agency policy from providing legal services outside his or her
employment, (iii) is retired from the practice of law, or (iv) maintains
inactive standing with the Clerk of the Indiana Supreme Court.

(b) Reporting Required. By requiring the
affirmative reporting of pro bono legal services provided directly to an
individual of limited means, this Rule 6.7 requires reporting only for a subset
of the public interest legal service encouraged under Rule 6.1.

(c) Public Disclosure of Information Received.
Information received pursuant to this Rule is declared confidential and shall
not be publically disclosed by the Indiana Supreme Court or any of its
agencies, on an individual or firm-wide basis.

A lawyer shall not make a false or misleading communication
about the lawyer or the lawyer's services. A communication is false or
misleading if it contains a material misrepresentation of fact or law, or omits
a fact necessary to make the statement considered as a whole not materially
misleading.

Commentary

[1] This Rule governs all
communications about a lawyer's services, including advertising permitted by
Rule 7.2. Whatever means are used to make known a lawyer's services, statements
about them must be truthful.

[2] Truthful statements that
are misleading are also prohibited by this Rule. In the absence of special
circumstances that serve to protect the probable targets of a communication
from being misled or deceived, a communication will violate Rule 7.1 if it:

(1) is
intended or is likely to result in a legal action or a legal position being
asserted merely to harass or maliciously injure another;

(2) contains
statistical data or other information based on past performance or an express
or implied prediction of future success;

(3) contains
a claim about a lawyer, made by a third party, that the lawyer could not
personally make consistent with the requirements of this rule;

(4) appeals
primarily to a lay person’s fear, greed, or desire for revenge;

(5) compares
the services provided by the lawyer or a law firm with other lawyers’ services,
unless the comparison can be factually substantiated;

(6) contains
any reference to results obtained that may reasonably create an expectation of
similar results in future matters;

(7) contains
a dramatization or re-creation of events unless the advertising clearly and
conspicuously discloses that a dramatization or re-creation is being presented;

(8) contains
a representation, testimonial, or endorsement of a lawyer or other statement
that, in light of all the circumstances, is intended or is likely to create an
unjustified expectation about a lawyer or law firm or a person’s legal rights;

(9) states
or implies that a lawyer is a certified or recognized specialist other than as
permitted by Rule 7.4;

(10) is
prohibited by Rule 7.3.

[3] See also Rule 8.4(e) for
the prohibition against stating or implying an ability to influence improperly
a government agency or official or to achieve results by means that violate the
Rules of Professional Conduct or other law.

(a) Subject to the requirements of this rule, lawyers and
law firms may advertise their professional services and law related services.
The term “advertise” as used in these Indiana Rules of Professional Conduct
refers to any manner of public communication partly or entirely intended or
expected to promote the purchase or use of the professional services of a
lawyer, law firm, or any employee of either involving the practice of law or
law-related services.

(b) A lawyer shall not give anything of value to a person
for recommending or advertising the lawyer's services except that a lawyer may:

(1) pay the reasonable costs of
advertisements or communications permitted by this Rule;

(2) pay the usual charges of a
legal service plan or a not-for-profit or qualified lawyer referral service
described in Rule 7.3(d);

(3) pay for a law practice in
accordance with Rule 1.17; and

(4) refer clients to another
lawyer or a non-lawyer professional pursuant to an agreement not otherwise
prohibited under these Rules that provides for the other person to refer
clients or customers to the lawyer, if

(i) the reciprocal referral
agreement is not exclusive, and

(ii) the client is informed of
the existence and nature of the agreement.

(c) Any communication subject to this rule shall include
the name and office address of at least one lawyer or law firm responsible for
its content. The lawyer or law firm responsible for the content of any
communication subject to this rule shall keep a copy or recording of each such
communication for six years after its dissemination.

Commentary

[1] To assist
the public in obtaining legal services, lawyers should be allowed to make known
their services not only through reputation but also through organized
information campaigns in the form of advertising. Advertising involves an
active quest for clients, contrary to the tradition that a lawyer should not
seek clientele. However, the public's need to know about legal services can be
fulfilled in part through advertising.

[2] Provided that
the advertising otherwise complies with the requirements of the Rules of
Professional Conduct, permissible subjects of advertising include:

(1) name and contact
information, including the name and contact information for an attorney, a law
firm, and professional associates;

(2) one or more fields of law in
which the lawyer or law firm practices, using commonly accepted and understood
definitions and designations;

(3) date and place of birth;

(4) date and place of admission
to the bar of state and federal courts;

(5) schools attended, with dates
of graduation, degrees, and other scholastic distinctions;

(6) academic, public or quasi-public,
military, or professional positions held;

(11) memberships and offices in
legal fraternities and legal societies;

(12) technical and professional
licenses;

(13) memberships in scientific,
technical, and professional associations and societies;

(14) foreign language ability;

(15) names and addresses of bank
references;

(16) professional liability
insurance coverage;

(17) prepaid or group legal
services programs in which the lawyer participates as allowed by Rule 7.3(d);

(18) whether credit cards or other
credit arrangements are accepted;

(19) office and telephone answering
service hours; and

(20) fees charged and other terms
of service pursuant to which an attorney is willing to provide legal or
law-related services.

[3] Neither this
Rule nor Rule 7.3 prohibits communications authorized by law, such as notice to
members of a class in class action litigation.

[4] Lawyers are
not permitted to pay others for channeling professional work. Paragraph (b)(1),
however, allows a lawyer to pay for advertising and communications permitted by
this Rule, including the costs of print directory listings, on-line directory
listings, newspaper ads, television and radio airtime, domain-name
registrations, sponsorship fees, banner ads, and group advertising. A lawyer
may compensate employees, agents, and vendors who are engaged to provide
marketing or client-development services, such as publicists, public-relations
personnel, business-development staff, and website designers. See Rule 5.3 for
the duties of lawyers and law firms with respect to the conduct of non-lawyers
who prepare marketing materials for them.

(a) A lawyer (including the lawyer’s employee or agent)
shall not by in-person, live telephone, or real–time electronic contact solicit
professional employment from a prospective client when a significant motive for
the lawyer’s doing so is the lawyer’s pecuniary gain, unless the person
contacted:

(1) is a lawyer; or

(2) has a family, close personal,
or prior professional relationship with the lawyer.

(b) A lawyer shall not solicit professional employment from
a prospective client by in-person or by written, recorded, audio, video, or
electronic communication, including the Internet, if:

(1) the prospective client has
made known to the lawyer a desire not to be solicited by the lawyer;

(2) the solicitation involves
coercion, duress or harassment;

(3) the solicitation concerns an
action for personal injury or wrongful death or otherwise relates to an
accident or disaster involving the person to whom the solicitation is addressed
or a relative of that person, unless the accident or disaster occurred more
than 30 days prior to the initiation of the solicitation;

(4) the solicitation concerns a
specific matter and the lawyer knows, or reasonably should know, that the
person to whom the solicitation is directed is represented by a lawyer in the
matter; or

(5) the lawyer knows, or
reasonably should know, that the physical, emotional, or mental state of the
person makes it unlikely that the person would exercise reasonable judgment in
employing a lawyer.

(c) Every written, recorded, or electronic communication from
a lawyer soliciting professional employment from a prospective client
potentially in need of legal services in a particular matter shall include the
words “Advertising Material” conspicuously placed both on the face of any
outside envelope and at the beginning of any written communication, and both at
the beginning and ending of any recorded or electronic communication, unless
the recipient of the communication is a person specified in paragraphs (a)(1)
or (a)(2). A copy of each such communication shall be filed with the Indiana
Supreme Court Disciplinary Commission at or prior to its dissemination to the
prospective client. A filing fee in the amount of fifty dollars ($50.00)
payable to the “Supreme Court Disciplinary Commission Fund” shall accompany each
such filing. In the event a written, recorded, or electronic communication is
distributed to multiple prospective clients, a single copy of the mailing less
information specific to the intended recipients, such as name, address
(including email address) and date of mailing, may be filed with the
Commission. Each time any such communication is changed or altered, a copy of
the new or modified communication shall be filed with the Disciplinary
Commission at or prior to the time of its mailing or distribution. The lawyer
shall retain a list containing the names and addresses, including email
addresses, of all persons or entities to whom each communication has been
mailed or distributed for a period of not less than one (1) year following the
last date of mailing or distribution. Communications filed pursuant to this
subdivision shall be open to public inspection.

(d) A lawyer shall not accept referrals from, make referrals
to, or solicit clients on behalf of any lawyer referral service unless such
service falls within clauses (1)-(4) below. A lawyer or any other lawyer
affiliated with the lawyer or the lawyer’s law firm may be recommended,
employed, or paid by, or cooperate with, one of the following offices or
organizations that promote the use of the lawyer’s services or those of the
lawyer’s firm, if there is no interference with the exercise of independent
professional judgment on behalf of a client of the lawyer or the lawyer’s firm:

(1) A legal office or public
defender office:

(A) operated or sponsored on a
not-for-profit basis by a law school accredited by the American Bar Association
Section on Legal Education and Admissions to the Bar;

(B) operated or sponsored on a
not-for-profit basis by a bona fide non-profit community organization;

(C) operated or sponsored on a
not-for-profit basis by a governmental agency;

(D) operated, sponsored, or
approved in writing by the Indiana State Bar Association, the Indiana Trial
Lawyers Association, the Defense Trial Counsel of Indiana, any bona fide county
or city bar association within the State of Indiana, or any other bar association
whose lawyer referral service has been sanctioned for operation in Indiana by
the Indiana Disciplinary Commission; and

(E) operated by a Circuit or
Superior Court within the State of Indiana.

(2) A military legal assistance
office;

(3) A lawyer referral service
operated, sponsored, or approved by any organization listed in clause (1)(D);
or

(4) Any other non-profit
organization that recommends, furnishes, or pays for legal services to its
members or beneficiaries, but only if the following conditions are met:

(A) the primary purposes of such
organization do not include the rendition of legal services;

(B) the recommending, furnishing,
or paying for legal services to its members is incidental and reasonably
related to the primary purposes of such organization;

(C) such organization does not
derive a financial benefit from the rendition of legal services by the lawyer;
and

(D) the member or beneficiary for
whom the legal services are rendered, and not such organization, is recognized
as the client of the lawyer in the matter.

(e) A lawyer shall not compensate or give anything of value
to a person or organization to recommend or secure the lawyer’s employment by a
client, or as a reward for having made a recommendation resulting in the
lawyer’s employment by a client, except that the lawyer may pay for public communication
permitted by Rule 7.2 and the usual and reasonable fees or dues charged by a
lawyer referral service falling within the provisions of paragraph (d) above.

(f) A lawyer shall not accept employment when the lawyer
knows, or reasonably should know, that the person who seeks the lawyer’s
services does so as a result of lawyer conduct prohibited under this Rule 7.3.

Commentary

[1] There is a
potential for abuse inherent in direct in-person, live telephone or real-time
electronic contact by a lawyer with a prospective client known to need legal
services. These forms of contact between a lawyer and a prospective client
subject the layperson to the private importuning of the trained advocate in a
direct interpersonal encounter. The prospective client, who may already feel
overwhelmed by the circumstances giving rise to the need for legal services,
may find it difficult fully to evaluate all available alternatives with
reasoned judgment and appropriate self-interest in the face of the lawyer's
presence and insistence upon being retained immediately. The situation is
fraught with the possibility of undue influence, intimidation, and
over-reaching.

[2] This
potential for abuse inherent in direct in-person, live telephone or real-time
electronic solicitation of prospective clients justifies its prohibition,
particularly since lawyer advertising and written and recorded communication
permitted under Rule 7.2 offer alternative means of conveying necessary
information to those who may be in need of legal services.

[3] The use of
general advertising and written, recorded, or electronic communications to
transmit information from lawyer to prospective client, rather than direct
in-person, live telephone or real-time electronic contact, will help to assure
that the information flows cleanly as well as freely. The contents of
advertisements and communications permitted under Rule 7.2 can be permanently
recorded so that they cannot be disputed and may be shared with others who know
the lawyer. This potential for informal review is itself likely to help guard
against statements and claims that might constitute false and misleading
communications, in violation of Rule 7.1. The contents of direct in-person,
live telephone, or real-time electronic conversations between a lawyer and a
prospective client can be disputed and may not be subject to third-party
scrutiny. Consequently, they are much more likely to approach (and occasionally
cross) the dividing line between accurate representations and those that are
false and misleading.

[4] There is far
less likelihood that a lawyer would engage in abusive practices against an
individual who is a former client, or with whom the lawyer has close personal
or family relationship, or in situations in which the lawyer is motivated by
considerations other than the lawyer's pecuniary gain. Nor is there a serious
potential for abuse when the person contacted is a lawyer. Consequently, the
general prohibition in Rule 7.3(a) and the requirements of Rule 7.3(c) are not
applicable in those situations. Also, paragraph (a) is not intended to prohibit
a lawyer from participating in constitutionally protected activities of public
or charitable legal-service organizations or bona fide political, social,
civic, fraternal, employee, or trade organizations whose purposes include
providing or recommending legal services to its members or beneficiaries.

[5] But even
permitted forms of solicitation can be abused. Thus, any solicitation which
contains information which is false or misleading within the meaning of Rule
7.1, which involves coercion, duress, or harassment within the meaning of Rule
7.3(b)(2), or which involves contact with a prospective client who has made
known to the lawyer a desire not to be solicited by the lawyer within the
meaning of Rule 7.3(b)(1) is prohibited. Moreover, if after sending a letter or
other communication to a client as permitted by Rule 7.2, the lawyer receives
no response, any further effort to communicate with the prospective client may
violate the provisions of Rule 7.3(b).

[6] This rule
allows targeted solicitation of potential plaintiffs or claimants in personal
injury and wrongful death causes of action or other causes of action that
relate to an accident, disaster, death, or injury, but only if such
solicitation is initiated no less than 30 days after the incident. This
restriction is reasonably required by the sensitized state of the potential
clients, who may be either injured or grieving over the loss of a family
member, and the abuses that experience has shown exist in this type of
solicitation.

(a) A
lawyer may communicate the fact that the lawyer does or does not practice in
particular fields of law.

(b) A lawyer admitted to engage in patent practice before
the United States Patent and Trademark Office may use the designation “Patent
Attorney” or a substantially similar designation.

(c) A lawyer engaged in Admiralty practice may use the
designation “Admiralty,” “Proctor in Admiralty” or a substantially similar
designation.

(d) A lawyer shall not state or imply that the lawyer is a
specialist in a particular field of law, unless:

(1) The lawyer has been
certified as a specialist by an Independent Certifying Organization accredited
by the Indiana Commission for Continuing Legal Education pursuant to Admission
and Discipline Rule 30; and,

(2) The certifying organization
is identified in the communication.

(e) Pursuant to rule-making powers inherent in its ability
and authority to police and regulate the practice of law by attorneys admitted
to practice law in the State of Indiana, the Indiana Supreme Court hereby vests
exclusive authority for accreditation of Independent Certifying Organizations
that certify specialists in legal practice areas and fields in the Indiana
Commission for Continuing Legal Education. The Commission shall be the
exclusive accrediting body in Indiana, for purposes of Rule 7.4(d)(1), above;
and shall promulgate rules and guidelines for accrediting Independent
Certifying Organizations that certify specialists in legal practice areas and
fields. The rules and guidelines shall include requirements of practice
experience, continuing legal education, objective examination; and, peer review
and evaluation, with the purpose of providing assurance to the consumers of
legal services that the attorneys attaining certification within areas of
specialization have demonstrated extraordinary proficiency within those areas
of specialization. The Supreme Court shall retain review oversight with respect
to the Commission, its requirements, and its rules and guidelines. The Supreme
Court retains the power to alter or amend such requirements, rules and
guidelines; and, to review the actions of the Commission in respect to this
Rule 7.4.

Commentary

[1] Paragraph
(a) of this Rule permits a lawyer to indicate areas of practice in
communications about the lawyer's services. If a lawyer practices only in
certain fields, or will not accept matters except in a specified field or
fields, the lawyer is permitted to so indicate.

[2] Paragraph (b)
recognizes the long-established policy of the Patent and Trademark Office for
the designation of lawyers practicing before the Office. Paragraph (c)
recognizes that designation of Admiralty practice has a long historical
tradition associated with maritime commerce and the federal courts.

(a) Firm names,
letterheads, and other professional designations are subject to the following
requirements:

(1) A lawyer shall not use a
firm name, letterhead or other professional designation that violates Rule 7.1.

(2) The name of a professional
corporation, professional association, limited liability partnership, or
limited liability company may contain, “P.C.”, “P.A.,” “LLP,” or “LLC” or
similar symbols indicating the nature of the organization.

(3) If otherwise lawful a firm
may use as, or continue to include in, its name, the name or names of one or
more deceased or retired members of the firm or of a predecessor firm in a
continuing line of succession. See Admission & Discipline Rule 27.

(4) A trade name may be used by a
lawyer in private practice subject to the following requirements:

(i) the name shall not imply a
connection with a government agency or with a public or charitable legal
services organization and shall not otherwise violate Rule 7.1.

(ii) the name shall include the
name of a lawyer (or the name of a deceased or retired member of the firm, or
of a predecessor firm in a manner that complies with subparagraph (2) above).

(iii) the name shall not include
words other than words that comply with clause (ii) above and words that:

(A) identify the field of law in
which the firm concentrates its work, or

(B) describe the geographic
location of its offices, or

(C) indicate a language fluency.

(b) A law firm with offices in more than one jurisdiction
may use the same name or other professional designation in Indiana if the name
or other designation does not violate paragraph (a) and the identification of
the lawyers in an office of the firm indicates the jurisdictional limitations
on those not licensed to practice in Indiana.

(c) The name of a lawyer holding a public office shall not
be used in the name of a law firm, or in communications on its behalf, during
any substantial period in which the lawyer is not actively and regularly
practicing with the firm. A member of a part-time legislative body such as the
General Assembly, a county or city council, or a school board is not subject to
this rule.

(d) Lawyers may state or imply that they practice in a
partnership or other organization only when they in fact do so.

Commentary

[1] A firm may be
designated by the names of all or some of its members, by the names of deceased
members where there has been a continuing succession in the firm's identity, or
by a trade name that complies with the requirements of the Rules of
Professional Conduct. A lawyer or law firm may also be designated by a
distinctive website address or comparable professional designation. The use of
a trade name in law practice is acceptable so long as it is not misleading and
otherwise complies with the requirements of paragraph (a)(4). A firm name that
includes the name of a deceased partner is, strictly speaking, a trade name.
The use of such names to designate law firms has proven a useful means of
identification. However, it is misleading to use the name of a lawyer not associated
with the firm or a predecessor of the firm, or the name of a non-lawyer.

[2] With regard
to paragraph (d), lawyers sharing office facilities, but who are not in fact
associated with each other in a law firm, may not denominate themselves as, for
example, "Smith and Jones," for that title suggests that they are practicing
law together in a firm.

An applicant for admission to the bar, or a lawyer in
connection with a bar admission application or in connection with a
disciplinary matter, shall not:

(a) knowingly make a false statement of material fact; or

(b) fail to disclose a fact necessary to correct a
misapprehension known by the person to have arisen in the matter, or knowingly
fail to respond to a lawful demand for information from an admissions or
disciplinary authority, except that this Rule does not require disclosure of
information otherwise protected by Rule 1.6.

Comment

[1] The duty imposed by this Rule extends to
persons seeking admission to the bar as well as to lawyers. Hence, if a person
makes a material false statement in connection with an application for
admission, it may be the basis for subsequent disciplinary action if the person
is admitted, and in any event may be relevant in a subsequent admission
application. The duty imposed by this Rule applies to a lawyer's own admission
or discipline as well as that of others. Thus, it is a separate professional
offense for a lawyer to knowingly make a misrepresentation or omission in
connection with a disciplinary investigation of the lawyer's own conduct.
Paragraph (b) of this Rule also requires correction of any prior misstatement
in the matter that the applicant or lawyer may have made and affirmative
clarification of any misunderstanding on the part of the admissions or
disciplinary authority of which the person involved becomes aware.

[2] This Rule is subject to the provisions of
the Fifth Amendment of the United States Constitution and corresponding
provisions of state constitutions. A person relying on such a provision in
response to a question, however, should do so openly and not use the right of
nondisclosure as a justification for failure to comply with this Rule.

[3] A lawyer representing an applicant for
admission to the bar, or representing a lawyer who is the subject of a
disciplinary inquiry or proceeding, is governed by the rules applicable to the
client-lawyer relationship, including Rule 1.6 and, in some cases, Rule 3.3.

(a) A lawyer shall not make a statement that the lawyer
knows to be false or with reckless disregard as to its truth or falsity
concerning the qualifications or integrity of a judge, adjudicatory officer or
public legal officer, or of a candidate for election or appointment to judicial
or legal office.

(b) A lawyer who is a candidate for judicial office shall
comply with the applicable provisions of the Code of Judicial Conduct.

Comment

[1] Assessments by lawyers are relied on in
evaluating the professional or personal fitness of persons being considered for
election or appointment to judicial office and to public legal offices, such as
attorney general, prosecuting attorney and public defender. Expressing honest
and candid opinions on such matters contributes to improving the administration
of justice. Conversely, false statements by a lawyer can unfairly undermine
public confidence in the administration of justice.

[2] When a lawyer seeks judicial office, the
lawyer should be bound by applicable limitations on political activity.

[3] To maintain the fair and independent
administration of justice, lawyers are encouraged to continue traditional
efforts to defend judges and courts unjustly criticized.

(a) A lawyer who knows that another lawyer has committed a
violation of the Rules of Professional Conduct that raises a substantial
question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in
other respects, shall inform the appropriate professional authority.

(b) A lawyer who knows that a judge has committed a
violation of applicable rules of judicial conduct that raises a substantial
question as to the judge's fitness for office shall inform the appropriate
authority.

(c) This Rule does not require reporting of a violation or
disclosure of information if such action would involve disclosure of
information that is otherwise protected by Rule 1.6, or is gained by a lawyer
while providing advisory opinions or telephone advice on legal ethics issues as
a member of a bar association committee or similar entity formed for the
purposes of providing such opinions or advice and designated by the Indiana
Supreme Court.

(d) The relationship between lawyers or judges acting on
behalf of a judges or lawyers assistance program approved by the Supreme Court,
and lawyers or judges who have agreed to seek assistance from and participate
in any such programs, shall be considered one of attorney and client, with its
attendant duty of confidentiality and privilege from disclosure.

Comment

[1] Self-regulation of the legal profession
requires that members of the profession initiate disciplinary investigation
when they know of a violation of the Rules of Professional Conduct. Lawyers
have a similar obligation with respect to judicial misconduct. An apparently
isolated violation may indicate a pattern of misconduct that only a
disciplinary investigation can uncover. Reporting a violation is especially
important where the victim is unlikely to discover the offense.

[2] A report about misconduct is not required
where it would involve violation of Rule 1.6. However, a lawyer should
encourage a client to consent to disclosure where prosecution would not
substantially prejudice the client's interests.

[3] If a lawyer were obliged to report every
violation of the Rules, the failure to report any violation would itself be a
professional offense. Such a requirement existed in many jurisdictions but
proved to be unenforceable. This Rule limits the reporting obligation to those
offenses that a self-regulating profession must vigorously endeavor to prevent.
A measure of judgment is, therefore, required in complying with the provisions
of this Rule. The term “substantial” refers to the seriousness of the possible
offense and not the quantum of evidence of which the lawyer is aware. A report
should be made to the bar disciplinary agency unless some other agency, such as
a peer review agency, is more appropriate in the circumstances. Similar
considerations apply to the reporting of judicial misconduct.

[4] The duty to report professional misconduct
does not apply to a lawyer retained to represent a lawyer whose professional
conduct is in question. Such a situation is governed by the rules applicable to
the client-lawyer relationship.

[5] Information about a lawyer's or judge's
misconduct or fitness may be received by a lawyer in the course of that
lawyer's participation in an approved lawyers or judges assistance program. In
that circumstance, providing for an exception to the reporting requirements of
paragraphs (a) and (b) of this Rule encourages lawyers and judges to seek
treatment through such a program. Conversely, without such an exception,
lawyers and judges may hesitate to seek assistance from these programs, which
may then result in additional harm to their professional careers and additional
injury to the welfare of clients and the public. These Rules do not otherwise
address the confidentiality of information received by a lawyer or judge
participating in an approved lawyers assistance program; such an obligation,
however, may be imposed by the rules of the program or other law.

(d) engage in conduct that is prejudicial to the
administration of justice;

(e) state or imply an ability to influence improperly a
government agency or official or to achieve results by means that violate the
Rules of Professional Conduct or other law;

(f) knowingly assist a judge or judicial officer in conduct
that is a violation of applicable rules of judicial conduct or other law; or

(g) engage in conduct, in a professional capacity,
manifesting, by words or conduct, bias or prejudice based upon race, gender,
religion, national origin, disability, sexual orientation, age, socioeconomic
status, or similar factors. Legitimate advocacy respecting the foregoing
factors does not violate this subsection. A trial judge's finding that
preemptory challenges were exercised on a discriminatory basis does not alone
establish a violation of this Rule.

Comment

[1] Lawyers are subject to discipline when
they violate or attempt to violate the Rules of Professional Conduct, knowingly
assist or induce another to do so or do so through the acts of another, as when
they request or instruct an agent to do so on the lawyer's behalf. Paragraph
(a), however, does not prohibit a lawyer from advising a client concerning
action the client is legally entitled to take.

[2] Many kinds of illegal conduct reflect
adversely on fitness to practice law, such as offenses involving fraud and the
offense of willful failure to file an income tax return. However, some kinds of
offenses carry no such implication. Traditionally, the distinction was drawn in
terms of offenses involving “moral turpitude.” That concept can be construed to
include offenses concerning some matters of personal morality, such as adultery
and comparable offenses, that have no specific connection to fitness for the practice
of law. Although a lawyer is personally answerable to the entire criminal law,
a lawyer should be professionally answerable only for offenses that indicate
lack of those characteristics relevant to law practice. Offenses involving
violence, dishonesty, breach of trust, or serious interference with the
administration of justice are in that category. A pattern of repeated offenses,
even ones of minor significance when considered separately, can indicate
indifference to legal obligation.

[3] A lawyer may refuse to comply with an
obligation imposed by law upon a good faith belief that no valid obligation
exists. The provisions of Rule 1.2(d) concerning a good faith challenge to the
validity, scope, meaning or application of the law apply to challenges of legal
regulation of the practice of law.

[4] Lawyers holding public office assume legal
responsibilities going beyond those of other citizens. A lawyer's abuse of
public office can suggest an inability to fulfill the professional role of
lawyers. The same is true of abuse of positions of private trust such as
trustee, executor, administrator, guardian, agent and officer, director or
manager of a corporation or other organization.

(a) Disciplinary Authority. A lawyer admitted to practice in
this jurisdiction is subject to the disciplinary authority of this
jurisdiction, regardless of where the lawyer's conduct occurs. A lawyer not
admitted in this jurisdiction is also subject to the disciplinary authority of
this jurisdiction if the lawyer provides or offers to provide any legal
services in this jurisdiction. A lawyer may be subject to the disciplinary
authority of both this jurisdiction and another jurisdiction for the same
conduct.

(b) Choice of Law. In any exercise of the disciplinary
authority of this jurisdiction, the rules of professional conduct to be applied
shall be as follows:

(1) for conduct in connection with a matter pending before a
tribunal, the rules of the jurisdiction in which the tribunal sits, unless the
rules of the tribunal provide otherwise; and

(2) for any other conduct, the rules of the jurisdiction in
which the lawyer's conduct occurred, or, if the predominant effect of the
conduct is in a different jurisdiction, the rules of that jurisdiction shall be
applied to the conduct.

Comment

Disciplinary Authority

[1] It is longstanding law that the conduct of
a lawyer admitted to practice in this jurisdiction is subject to the
disciplinary authority of this jurisdiction. Extension of the disciplinary
authority of this jurisdiction to other lawyers who provide or offer to provide
legal services in this jurisdiction is for the protection of the citizens of
this jurisdiction. Reciprocal enforcement of a jurisdiction's disciplinary
findings and sanctions will further advance the purposes of this Rule. A lawyer
who is subject to the disciplinary authority of this jurisdiction under Rule
8.5(a) appoints an official to be designated by this Court to receive service
of process in this jurisdiction. The fact that the lawyer is subject to the
disciplinary authority of this jurisdiction may be a factor in determining
whether personal jurisdiction may be asserted over the lawyer for civil
matters.

Choice of Law

[2] A lawyer may be potentially subject to more
than one set of rules of professional conduct which impose different
obligations. The lawyer may be licensed to practice in more than one
jurisdiction with differing rules, or may be admitted to practice before a
particular court with rules that differ from those of the jurisdiction or
jurisdictions in which the lawyer is licensed to practice. Additionally, the
lawyer's conduct may involve significant contacts with more than one
jurisdiction.

[3] Paragraph (b) seeks to resolve such
potential conflicts. Its premise is that minimizing conflicts between rules, as
well as uncertainty about which rules are applicable, is in the best interest
of both clients and the profession (as well as the bodies having authority to
regulate the profession). Accordingly, it takes the approach of (i) providing
that any particular conduct of a lawyer shall be subject to only one set of
rules of professional conduct and (ii) making the determination of which set of
rules applies to particular conduct as straightforward as possible, consistent
with recognition of appropriate regulatory interests of relevant jurisdictions.

[4] Paragraph (b)(1) provides that as to a
lawyer's conduct relating to a proceeding pending before a tribunal, the lawyer
shall be subject only to the rules of the jurisdiction in which the tribunal
sits unless the rules of the tribunal, including its choice of law rule,
provide otherwise. As to all other conduct, including conduct in anticipation
of a proceeding not yet pending before a tribunal, paragraph (b)(2) provides
that a lawyer shall be subject to the rules of the jurisdiction in which the
lawyer's conduct occurred, or, if the predominant effect of the conduct is in
another jurisdiction, the rules of that jurisdiction shall be applied to the
conduct. In the case of conduct in anticipation of a proceeding that is likely
to be before a tribunal, the predominant effect of such conduct could be where
the conduct occurred, where the tribunal sits or in another jurisdiction.

[5] If two admitting jurisdictions were to
proceed against a lawyer for the same conduct, they should, applying this rule,
identify the same governing ethics rules. They should take all appropriate
steps to see that they do apply the same rule to the same conduct, and in all
events should avoid proceeding against a lawyer on the basis of two
inconsistent rules.

[6] The choice of law provision applies to
lawyers engaged in transnational practice, unless international law, treaties
or other agreements between competent regulatory authorities in the affected
jurisdictions provide otherwise.

A non-lawyer assistant shall perform services only under the
direct supervision of a lawyer authorized to practice in the State of Indiana
and in the employ of the lawyer or the lawyer's employer. Independent
non-lawyer assistants, to-wit, those not employed by a specific firm or by
specific lawyers are prohibited. A lawyer is responsible for all of the
professional actions of a non-lawyer assistant performing services at the
lawyer's direction and should take reasonable measures to insure that the
non-lawyer assistant's conduct is consistent with the lawyer's obligations
under the Rules of Professional Conduct.

Provided the lawyer maintains responsibility for the work
product, a lawyer may delegate to a non-lawyer assistant or paralegal any task
normally performed by the lawyer; however, any task prohibited by statute,
court rule, administrative rule or regulation, controlling authority, or the
Indiana Rules of Professional Conduct may not be assigned to a non-lawyer.

It is the lawyer's responsibility to take reasonable
measures to ensure that clients, courts, and other lawyers are aware that a
non-lawyer assistant, whose services are utilized by the lawyer in performing
legal services, is not licensed to practice law.

A lawyer may not split legal fees with a non lawyer
assistant nor pay a non-lawyer assistant for the referral of legal business. A
lawyer may compensate a non-lawyer assistant based on the quantity and quality
of the non-lawyer assistant's work and the value of that work to a law
practice, but the non-lawyer assistant's compensation may not be contingent, by
advance agreement, upon the profitability of the lawyer's practice.

All lawyers who employ non-lawyer assistants in the State of
Indiana shall assure that such non-lawyer assistants conform their conduct to
be consistent with the following ethical standards:

(a) A non-lawyer assistant may perform any task delegated
and supervised by a lawyer so long as the lawyer is responsible to the client,
maintains a direct relationship with the client, and assumes full professional
responsibility for the work product.

(b) A non-lawyer assistant shall not engage in the
unauthorized practice of law.

(c) A non-lawyer assistant shall serve the public interest
by contributing to the delivery of quality legal services and the improvement
of the legal system.

(d) A non-lawyer assistant shall achieve and maintain a high
level of competence, as well as a high level of personal and professional
integrity and conduct.

(e) A non-lawyer assistant's title shall be fully disclosed
in all business and professional communications.

(f) A non-lawyer assistant shall preserve all confidential
information provided by the client or acquired from other sources before,
during, and after the course of the professional relationship.

(g) A non-lawyer assistant shall avoid conflicts of interest
and shall disclose any possible conflict to the employer or client, as well as
to the prospective employers or clients.

(h) A non-lawyer assistant shall act within the bounds of
the law, uncompromisingly for the benefit of the client.

(i) A non-lawyer assistant shall do all things incidental,
necessary, or expedient for the attainment of the ethics and responsibilities
imposed by statute or rule of court.

(j) A non-lawyer assistant shall be governed by the Indiana
Rules of Professional Conduct.

(k) For purposes of this Guideline, a non-lawyer assistant
includes but shall not be limited to: paralegals, legal assistants,
investigators, law students and paraprofessionals.